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/IT,^ 3 "No. 13140 



^Sntteb States 

Court of Sppeate 

for tfje iSintfj Circuit, 



NATIONAL LABOR RELATIONS BOARD, 

Petitioner, 



vs. 



HOWELL CHEVROLET COMPANY, a Corpora 
tion, 

Respondent. 



Kraitgcript of 3&ecorb 



Petition for Enforcement of Order of the 
National Labor Relations Board 



FILED 

JAN - 1 1952 



Phillips Cx Van Orden Co., 870 BrannaPsAiJtsarRrarQ^cSRliEN m 

CLERK 



No. 13140 



WLnittb States 

Court of Sppeate 

tor tfje J^intf) Circuit. 



NATIONAL LABOR RELATIONS BOARD, 

Petitioner, 



vs. 



HOWELL CHEVROLET COMPANY, a Corpora 
tion, 

Respondent. 



transcript of Eecorb 



Petition for Enforcement of Order of the 
National Labor Relations Board 



Phillips Cr Van Orden Co., 870 Brannan Street, Son Francisco, Calif. 



'•EX 



[Clerk's Note: When deemed likely to be of an important nature, 
errors or doubtful matters appearing in the original certified record 
are printed literally in italic; and, likewise, cancelled matter appear- 
ing in the original certified record is printed and cancelled herein 
accordingly. When possible, an omission from the text is indicated by 
printing in italic the two words between which the omission seems 
to occur.] 

PAGE 

Amendment to Complaint (General Counsel 
Exhibit No. 1-L) 10 

Answer (General Counsel's Exhibit No. 1-K) . . 9 

Answer to Amendment to Complaint (General 
Counsel's Exhibit No. 1-N) 11 

Appearances 1 

Certificate of the National Labor Relations 
Board 311 

Complaint (General Counsel's Exhibit No. 1-1) 3 

Decision and Order 54 

Exhibits, General Counsel's: 

No. 2 — Purchases From the Chevrolet Di- 
vision of General Motors of New 
Cars and Trucks 72 

3 — Listing of Supplies of Material 
and Equipment Supplied to the 
Howell Chevrolet Co., Other Than 
Automobiles 73 

5 — Direct Dealer Selling Agreement 
(Portion of) 75 



ii National Labor Relations Board 

INDEX PAGE 

Exhibits, Ueneral Counsel's— (Continued) : 

No. 5-A— Paper Headed Los Angeles, 
California, Dated November 1, 
1949 77 

5- B— Addendum to the Dealer Selling 

Agreement Signed by Mr. Steele 79 

5-C — Direct Dealer Selling Agree- 
ment 82 

6— Letter Dated October 6, 1950 and 
Answer Dated October 25, 1950. . 92 

7— Telegram Dated October 31, 1950 99 

8— Payroll List of February 1, 1950. . 101 

10 — Diploma Issued by Chevrolet 
Motor Division, General Motors 
Corporation 113 

11— Authorization Card, Lee E. Fitz- 
hugh 117 

12 — Authorization Card, H. William 

Barnum 1 1{) 

13 — Authorization Card, Richard A. 

Wells 122 

1 I Authorization Card. Ralph Meaty 12 1 

ir>— Authorization Card, Joe Bcioloro. 127 

16 Authorization Card, L A. Mal- 
strom 130 

17-A— 17-K— Stubs From Pay Checks 136 



vs. Howell Chevrolet Co., etc. iii 

INDEX PAGE 

Exhibits, General Counsel's — (Continued) : 

No. 17-F— Stub From Pay Check 136 

18 — Authorization Card, George A. 

Kirkland 162 

19 — Authorization Card, George A. 

Smith 193 

20 — Authorization Card, Paul W. 

Arnold 205 

23— Letter Dated January 31, 1950. ... 214 

26 — Authorization Card, Boyce E. 

Skelton 219 

31 — Authorization Card, Philip Cabal- 

lero 216 

32 — Authorization Card, Kenneth I. 

Herrick 218 

35 — Authorization Card, Joseph P. 

Price 222 

36 — Authorization Card, Joseph Rose. 225 

37— Authorization Card, Ed Oaly 233 

Intermediate Report and Recommended Order 12 

Order to Show Cause 328 

Petition for Enforcement of An Order of the 
National Labor Relations Board 316 

Proceedings 72 



iv National Labor Relations Board 

INDEX PAGE 

Witnesses, Employer's: 

Caballero, Philip 

—direct 290 

Green, George 

—direct 296 

Potruch, Frederick A. 

—direct 304 

Price, Joseph P. 

—direct 288 

Reeve, Robert E. 

—direct 299 

Scioloro, Joseph 

—direct 298 

Wells, Richard A. 

—direct 293 

— cross 294 

Witnesses, General Counsel's: 

Arnold, Paul 

—direct 203 

—cross 208 

Daly, Edward 

— dired 232 

Fitzhugh, Lee E. 

—dired 177 

—cross 181 

—redirect 188 

Gordon, I). A. 

—direct 213, 308 



vs. Howell Chevrolet Co., etc. v 

INDEX PAGE 

Witnesses, General Counsel's — (Continued) : 

Hansen, William Francisco 

—direct 208 

Howell, Jackson 

—direct 88, 303 

Kirkland, George A. 

—direct 161 

— cross 168 

— redirect 175 

— recross 176 

Leonard, Claude 

—direct 102, 220, 301 

— <?ross 151, 189 

Rose, Joseph 

—direct 223 

Skagen, Edward M. 

—direct 217, 305 

Skelton, Boyce 

—direct 226 

— cross 230 

Smith, George Albert 

—direct 191 

— cross 203 

Witnesses, Respondent's: 

Bordeau, Rowland 

— direct 250 

— cross 262 



vi National Labor Relations Board 

INDEX PAGE 

Witnesses, Respondent's — (Continued) : 
Christian, Doyle 

—direct 282 

Eerrick, Kenneth 

—direct 284 

—cross 288 

Howell, Jackson 

—direct 235 

— cross 248 

—redirect 249 

Potruch, Frederick A. 

—direct 270 

Respondent's Answer to Petition for Enforce- 
ment of An Order of the N.L.R.B 323 

Statement of Points on Which Petitioner In- 
tends to Rely 315 

Statement of Points on Which Respondent In- 
tends to Rely 32(i 



APPEARANCES 

A. NORMAN SOMERS, 

Asst. Gen. Counsel, NLRB, 
Washington, D. C. 

HOWARD F. LeBARON, 
Reg. Dir. NLRB, 

111 West 7th St., 
Los Angeles, Calif., 

For Petitioner. 

CARTER & POTRUCH, 

JAMES M. NICOSON, 
610 S. Broadway, 
Los Angeles (14), Calif., 

For Respondent. 



3 

United States of America 

Before the National Labor Relations Board 

Twenty-First Region 

Case No. 21-CA-794 

In the Matter of 

HOWELL CHEVROLET COMPANY, 

and 
INTERNATIONAL ASSOCIATION OF MA- 
CHINISTS, DISTRICT LODGE No. 727. 

COMPLAINT 

It having been charged by International Asso- 
ciation of Machinists, District Lodge No. 727, 
herein called Lodge 727, that Howell Chevrolet 
Company has engaged in and is engaging in unfair 
labor practices affecting commerce, as set forth and 
defined in the National Labor Relations Act, as 
amended, Public Law 101 — 80th Congress, First 
Session, hereinafter called the Act, the General 
Counsel of the National Labor Relations Board, by 
the Regional Director for the Twenty-First Region 
designated by the Board's Rules and Regulations, 
Series 5, Section 102.15, hereby issues this Com- 
plaint and alleges as follows: 

1. Howell Chevrolet Company, a corporation 
organized and existing by virtue of the laws of the 
State of California, herein called Respondent 
Howell, is engaged in, and at all times material 
herein, has been engaged in the operation of an 
automobile agency dealership and repair shop in 



4 National Labor I\( hit ions Board 

Glendale, California, for the sale and distribution 
of n«'\v Chevrolet motor ears, trucks and parts un- 
der a franchise or dealer's agreement with the 
Chevrolet Division <>f General Motors Corporation. 

2. Respondent Unwell, in the course and conduct 
of its business, has caused and is causing large 
amounts of equipment, materials and supplies to 
he acquired and purchased, transported and de- 
livered in interstate commerce from and through 
states of the Tinted States other than the State of 
California to its place of business in Glendale, 
California. 

3. Respondent Howell, in the course and conduct 
of its business, as specified above, obtains large 
numbers of new Chevrolet motor cars and trucks 
from the Chevrolet Division of General Motors 
Corporation assembly plant in Van Nuys, Califor- 
nia, of which more than 50 ])ev cent of the parts, 
equipment and supplies used in the assembly of 
such motor cars and trucks was shipped from out- 
side the State of California. 

4. International Association of Machinists, Dis- 
trict Lodge No. 727, is a labor organization within 
the meaning of Section 2, subsection (f>) of the 
Act. 

5. On January 31, L950, Lodge 727, pursuant to 
Section 9 (c) of the Act, duly Sled with the Board 
a Petition for Certification of Representatives in 
Matte.- of Bowel! Chevrolel Co., Case X<>. iM-RC- 
1 1 Mi. Following a hearing, the Board, on May 5, 



v $. Howell Chevrolet Co., etc. 5 

1950, directed that an election be held among em- 
ployees of Respondent Howell. On June 1, 1950, 
pursuant to the direction of the Board, an election 
was conducted. On June 7, 1950, Lodge 727 filed 
objections to conduct affecting the results of said 
election. On August 9, 1950, the Acting Regional 
Director for the Twenty-First Region of the Board 
issued his Report on Objections. On August 29, 
1950, the Board issued an Order Directing Hearing 
on Objections. 

6. A unit composed of all employees of Respond- 
ent Howell at its establishment at Glendale, Cali- 
fornia, excluding salesmen, office and clerical 
employees, professional employees, guards and 
supervisors as denned in the Act, is a unit appro- 
priate for the purposes of collective bargaining as 
defined in Section 9 of the Act. 

7. At all times since on or about January 31, 
1950, Lodge 727 has been and now is the duly desig- 
nated collective bargaining representative of the 
employees in the unit set forth in paragraph 6 
hereof. 

8. From on or about January 31, 1950, to the 
date hereof, Respondent Howell, by its officers, 
supervisors, agents and representatives, including, 
but not limited to Frederick A. Potruch, has failed 
and refused, and does now fail and refuse, to bar- 
gain collectively with Lodge 727 with respect to 
wages, hours and conditions of employment of the 
employees in the unit set forth in paragraph 6 
hereof. 



National Labor Relations Hoard 

u. Responded Howell, by its officers, supervisors, 
agents and representatives, including, but not 
limited to Frederick A. Potruch, from on or about 
January 31, 1950, to the date hereof, lias interfered 
with, restrained and coerced its employees in the 
exercise of their rights guaranteed in Section 7 of 
the Act, by various acts and statements including, 
but not limited to, the following: 

(a) Coercing and intimidating employees by 

threats of reprisal if they should join Lodge 
727 and promises of reward if they should re- 
frain from supporting Lodge 727; 

(b) Stating to employees that, if Lodge 727 
won the election referred to in paragraph 5 
hereof, it would not bargain with Lodge 727 
or enter into a contractual relationship with 
it ; and 

(c) Stating to employees that it would dis- 
criminate against employees engaging in strikes 
or other concerted activities because of re- 
spondent's refusal to bargain with Lodge 727. 

10. Respondent Howell, by its officers, agents 
and supervisory employees, did, on or about March 
31, L950, discharge Claude Leonard because of his 
activities on behalf of and Ids membership in Lodge 
727, and lias thereafter refused reemployment to 
Claude Leonard because of Ins activities on behalf 
of and his membership in Lodge TUT. 

1 1. Respondent Howell, by its officers, agents and 

representatives, did. on or about March :>l, L950, 



vs. Hoivell Chevrolet Co., etc. 7 

discharge Claude Leonard because he testified as a 
witness at a formal hearing in National Labor Rela- 
tions Board case 21-RC-1146, and for the same 
reason has thereafter refused to reemploy him. 

12. By the acts and conduct set forth and de- 
scribed in paragraphs 8 through 11 hereof, Re- 
spondent Howell has interfered with, restrained 
and coerced its employees in the exercise of their 
rights guaranteed in Section 7 of the Act, and did 
thereby engage in and is now engaging in unfair 
labor practices within the meaning of Section 8 (a) 
(1) of the Act. 

13. By the acts and conduct set forth and de- 
scribed in paragraph 8 hereof, Respondent Howell 
has refused to bargain collectively with the repre- 
sentatives of its employees and did thereby engage 
in, and is now engaging in, unfair labor practices 
within the meaning of Section 8 (a) (5) of the 
Act. 

14. By the acts and conduct set forth and de- 
scribed in paragraph 10 hereof, Respondent Howell 
did discriminate and is now discriminating in re- 
gard to the hire and tenure and conditions of em- 
ployment of its employees to discourage member- 
ship in Lodge 727, and did thereby engage in, and 
is now engaging in, unfair labor practices within 
the meaning of Section 8 (a) (3) of the Act. 

15. By the acts and conduct set forth and de- 
scribed in paragraph 11 hereof, Respondent Howell 
did thereby engage in, and is now engaging in, 



8 National Labor Relations Hoard 

unfair labor practices within the meaning of Sec- 
tion 8 (a) 1 1 of the Act 

L6. The acts and conduct of Respondent Howell, 

as -ct forth and described in paragraphs S through 

ll hereof, occurring in connection with the business 

of Respondent Howell, as described above, have a 
close, intimate and substantial relation to com- 
merce, as defined in Section 2 (6) of the Act, and 
have led and tend to lead to labor disputes burden- 
ing and obstructing commerce and the free flow of 
commerce as defined in Section 2 (7) of the Act. 

17. The acts and conduct of Respondent Howell, 
set forth and described in paragraphs 8 through 11 
hereof, occurring in connection with the business of 
Respondent Howell, as described above, constitute 
unfair Labor practices affecting commerce within 
the meaning of Sections 8 (a) (1), 8 (a) (3), 8 (a) 
(4), 8 (a) (5), and Sections 2 (6) and 2 (7) of the 
Act. 

Wherefore, the General Counsel of the National 
Labor Relations Board, on behalf of the Board, by 
the Regional Director for the Twenty-First Region 
this loth day of September, 1950, issues this Com- 
plaint against Respondent herein. 

[N.L.R.H. Seal.] 

/s/ HOWARD F. LeHARON, 
Regional Director National Labor nidations Board, 
Twenty Firs! R( gion. 

[Admitted in evidence October 31, 1950, as Gen- 
era] Counsel's Exhibit No. l-L] 



vs. Howell Chevrolet Co., etc. 9 

[Title of Board and Cause.] 

ANSWER 

Comes now Howell Chevrolet Company, respond- 
ent in the above-entitled matter, and for answer to 
the complaint filed herein, admits, denies and al- 
leges as follows: 

I. 

Respondent denies generally and specifically all 
allegations contained in paragraphs 2, 4, 7, 8, 9 (a), 
9 (b), 9 (c), 10, 11, 12, 13, 14, 15, 16 and 17. 

II. 

Respondent is without knowledge sufficient to an- 
swer the allegations of paragraph 3 of the com- 
plaint herein and basing its answer upon such lack 
of knowledge, denies generally and specifically all 
allegations contained in said paragraph and de- 
mands strict proof thereof. 

III. 

As a statement of fact as required by Section 
203.20 of the National Labor Relations Board Rules 
and Regulations, Series 5, as amended, respondent 
alleges as follows: 

A. That District Lodge No. 727 of the Inter- 
national Association of Machinists never had a 
majority of respondent's employees in the unit 
as set forth in paragraph 6 of the complaint 
herein. 

B. That Claude Leonard was not discharged 



10 National Labor Relations Board 

because of his affiliations with District Lodge 
727 of the International Association of Ma- 
chinists or because he testified as a witness at 
a formal hearing in National Labor Relations 
Board Case No. 21-RC-1146'. Claude Leonard's 
discharge was predicated on sound economic 
reasons and reasons of cause 4 . 

Wherefore, respondent prays that the complaint 
be dismissed and for such other and further relief 
as the Board deems just and reasonable. 

CARTER & POTRUCH, 
By /s/ FREDERICK A. POTRUCH, 
/s/ JAMES M. NICOSON, 
Attorneys for 

Howell Chevrolet Company. 
Duly verified. 

Affidavit of Service by Mail attached. 

[Admitted in evidence October 31, 1950, as Gen- 
eral Counsel's Exhibit No. 1-K.] 



[Title of Board and Cause.] 

AMENDMENT TO COMPLAINT 

Please Take Notice that the Complaint in the 

above-entitled matter, issued on September 15, 
11)50, is hereby amended as follows: 

l. Add paragraph 10(a) to Complaint — 

"10(a). Respondent Howell, by its officers, 
agents, and supervisory employees during the 



vs. Howell Chevrolet Co., etc. 11 

period from February 1, 1950, to March 31, 
1950, refused to assign Claude Leonard to his 
regularly scheduled work because of his activi- 
ties on behalf of and his membership in Lodge 

727." 

2. Amend paragraph 14 by adding — 

"and paragraph 10(a) " following the words 
"paragraph 10" in the second line. 

Dated at Los Angeles, California, this 16th day 
of October, 1950. 

/s/ HOWARD F. LeBARON, 
Regional Director National Labor Relations Board, 
Twenty-First Region. 

[N.L.R.B. Seal.] 

[Admitted in evidence October 31, 1950, as Gen- 
eral Counsel's Exhibit No. 1-L.] 



[Title of Board and Cause.] 

ANSWER TO AMENDMENT TO COMPLAINT 

Comes now the respondent herein, Howell Chev- 
rolet Company, and for answer to the amendment 
to the Complaint denies generally and specifically 
all allegations therein contained. 

/s/ JAMES M. NICOSON, 
Attorney for 

Howell Chevrolet Company. 

[Admitted in evidence October 31, 1950, as Gen- 
eral Counsel's Exhibit No. 1-N.] 



12 National Labor Relations Board 

[Title of Board and Cause] 

INTERMEDIATE REPORT AND 
RECOMMENDED ORDER 

Statement of the Case 

Upon a petition duly filed on January 31, 1950, 1 
by International Association of Machinists, District 
Lodge No. 727, herein called the Union, the Na- 
tional Labor Relations Board, herein called the 
Board, held a hearing on March 15, to determine 
whether the employees of Howell Chevrolet Com- 
pany, Glendale, California, herein called the Re- 
spondent, desired to be represented by the Union 
for the purposes of collective bargaining. There- 
after and on May 5, the Board issued an order- 
directing that an election be conducted among the 
Respondent's employees in a certain appropriate 
unit under the auspices of the Regional Director 
for the Twenty-First Region (Los Angeles, 
California). 

On June 1, the said election was held and the 
Union lost the election. 3 The Union, on June 7, 
filed objections to the conduct of the election, and 
on AugUfll <). the then Acting Regional Director for 
the Twenty-First Region issued his report on the 
objections finding that the aforesaid objections 



HJnless otherwise noted all events referred to 
herein occurred in 1950. 



39 NLRB No. 142. 



30f the 26 valid votes cast, 11 were cast for the 

Union, L3 against, and 2 were challenged. 



vs. Howell Chevrolet Co., etc. 13 

raised substantial and material issues and recom- 
mended that a hearing be held to resolve said 
issues. No exceptions were filed by any of the 
parties to the said Acting Regional Director's rec- 
ommendations. The Board, by order dated August 
29, adopted the aforesaid recommendations and 
ordered a hearing to be held for the purpose of 
resolving the issues raised by the Union's ob- 
jections. 

Upon a charge and an amended charge duly filed 
on June 6 and July 26, respectively, by the Union, 
the General Counsel of the Board, herein called the 
General Counsel, issued his complaint on Septem- 
ber 15, alleging that the Respondent had engaged 
in, and was engaging in, unfair labor practices 
affecting commerce, within the meaning of Section 
8 (a) (1), (3), (4), and (5) and Section 2 (6) and 
(7) of the National Labor Relations Act, as 
amended, 61 Stat. 136, herein called the Act. Copies 
of the complaint, charge, amended charge, Union's 
objections to the election, the Acting Regional Di- 
rector's report with respect thereto, the Board's 
order directing a hearing on the said objections, 
together with notice of hearing on the complaint 
and on the objections, were duly served upon the 
Respondent and upon the Union. 

With respect to the unfair labor practices, the 
complaint alleged, in substance, that the Respond- 
ent (1) discharged Claude Leonard on or about 
March 31, and thereafter refused to reinstate him 
because of his membership and activities in behalf 



14 National Labor B( lotions Board 

of the Union and because he testified as a witness 
at a formal hearing in the Matter of Howell Chevro- 
let Company and International Association of 
Machinists, District Lodge No. T27 4 ; (2) since on 
or about January 31, refused to bargain collectively 
with the Union although the Union previously had 
been designated and selected the collective bargain- 
ing representative by the Respondent's employees 
in a certain appropriate unit as such representa- 
tive; and (3) engaged in certain stated conduct and 
made various statements which interfered with, 
coerced, and restrained its employees in the exer- 
cise of the rights guaranteed in Section 7 of the 
Act. 

On September 22, the Respondent duly filed an 
answer denying the commission of the alleged un- 
fair tabor practices. On October 30, the Respondent 
duly filed an "Answer to the Amendment to Com- 
plaint. " 

Pursuant to notice, a hearing was held from 
October 31 to November 3, both dates inclusive, at 
Los Angeles, California, before the undersigned, 
Howard Myers, the duly designated Trial Examiner. 
The Respondent and the General Counsel were 
represented by counsel; the Union by representa- 
tives thereof. All parties participated in the hear- 



On October 6, the General Counsel served upon 
the Union and upon the Respondent "Amendment 

to Complaint" wherein lie alleged that Leonard 

was discriminatorily refused his regularly sched- 
uled work during February and March, L950. 



vs. Howell Chevrolet Co., etc. 15 

ing and were afforded full opportunity to be heard, 
to examine and cross-examine witnesses, and to in- 
troduce evidence pertinent to the issues. 

At the conclusion of the General Counsel's case- 
in-chief, the Respondent's motions to dismiss the 
complaint in its entirety or, in the alternative, to 
dismiss certain stated portions thereof, were denied. 
At the conclusion of the taking of the evidence, the 
General Counsel moved to conform the pleadings to 
the proof with respect to minor variances, but not 
to include any new unfair law practices, was 
granted without objection. Counsel for the Re- 
spondent then renewed his motions to dismiss the 
complaint. Decision thereon was reserved. The 
motions are hereby denied. The parties were then 
informed that they might file briefs or proposed 
findings of fact and conclusions of law, or both, with 
the undersigned on or before November 18. 5 Briefs 
have been received from the Respondent and from 
the General Counsel which have been carefully 
considered by the undersigned. 

Upon the entire record in the case, and from his 
observation of the witnesses, the undersigned makes 
the following: 

Findings of Fact 

1. The business of the Respondent 
Howell Chevrolet Company, a California corpora- 
tion, is engaged in, and at all times material herein 



Subsequently the time was extended to Decem- 
ber 6. 



16 National Labor Relations Board 

has been engaged in, the operation of an automobile 

agency dealership and automobile repair and service 
shop in Glendale, California, for the service, sale, 
and distribution of new Chevrolet automobiles, 
trucks, accessories, and parts under an exclusive 
franchise or dealer's agreement with the Chevrolet 
Motor Division — General Motors Corporation. The 
Respondent also operates a used car lot which is 
located aci-oss the street from its main showroom 
and service station. 

During H)49, the Respondent purchased from the 
Chevrolet Motor Division — General Motors Cor- 
poration — new Chevrolet automobiles and trucks 
valued at $960,797.97 and parts and accessories 
valued at $129,145.01. In addition, during 1949, the 
Respondent purchased from sources other than 
Chevrolet Motor Division — General Motors Cor- 
poration — parts and accessories valued at $36,240.35. 
During the same year, the Respondent's sales of 
new Chevrolet cars and trucks amounted to $l,24b,- 
812.50 and sold parts and accessories valued at 
$256,850.62. 

The Chevrolet Division — General Motors Cor- 
poration — maintains a new car and truck assembly 
plant at Van Xuys, California, from which the 
Respondent obtains its new cars and trucks. 

For the fiscal year ending September 30, L950, 
motor vehicle production parts, parts and acces- 
sories valued in excess of $5,000,000 were shipped 
to the said Van Nliys plant, of which amount ap- 
proximately 43 per cent were shipped from points 



vs. Howell Chevrolet Co., etc. 17 

located outside the State of California. During the 
aforesaid fiscal year, the Respondent's purchases 
from Chevrolet Motor Division — General Motors 
Corporation — amounted to more than $1,500,000 but 
were less than $2,000,000. 

All the Respondent's sales of automobiles, both 
new and used, parts, and accessories, are made 
either locally or within the State of California. 

Counsel for the Respondent contended at the hear- 
ing, and in their brief, that the complaint should be 
dismissed because, among other reasons, the Re- 
spondent is not engaged in commerce within the 
meaning of the Act, and even if it were so engaged, 
the Board nonetheless should not assert its jurisdic- 
tion because of the local character of the Respond- 
ent's business. For the reasons set forth by the 
Board in the Baxter Bros, case, 91 NLRB No. 233, 
the undersigned finds the contention to be without 
merit. 6 Upon the basis of the entire record, the 
undersigned finds that during all times material 
herein the Respondent was, and now is, subject to 
the Board's jurisdiction and that it will effectuate 
the policies of the Act for the Board to assert its 
jurisdiction. 

II. The organization involved 

International Association of Machinists, District 
Lodge No. 727 is a labor organization admitting to 
membership employees of the Respondent. 



*See also NLRB v. M. L. Townsend (C.A. 9), 26 
LRMM 2561. 



18 National Labor Relations Board 

III. The unfair labor practices 

A. The refusal to bargain collectively 
with the Union 

1. The appropriate unit 

The complaint alleged, as the Board found in its 
Decision and Direction of Election, dated May 5, 
1 J>r>0, 7 that all employees of the Respondent at its 
establishment in Glendale, California, excluding 
salesmen, office and clerical employees, professional 
employees, guards, and supervisors as defined by 
the Act, constituted a unit appropriate for the pur- 
poses of collective bargaining. 9 In its answer the 
Respondent neither denied nor admitted that such 
unit was appropriate. Under the circumstances, the 
undersigned finds that all employees of the Re- 
spondent at its establishment in Glendale, Califor- 
nia, excluding salesmen, office and clerical em- 
ployees, professional employees, guards, and super- 
visors as defined by the Act, at all times material 
herein constituted, and now constitute, a unit ap- 
propriate for the purposes of collective bargaining, 
within the meaning of Section V (b) of the Act, 
with respect to rates of pay, wages, hours of em- 
ployment, and other conditions of employment, and 
that the said unit insures to the Respondent's em- 



789 NLRB No. 142. 



J 'hi the representation case the Board rejected 
the Respondent's contention that the appropriate 

unit should COnsi8l only of employees who are su- 
pervised by its service manager. 



vs. Howell Chevrolet Co., etc. 19 



ployees the full benefit of their right to self-organ- 
ization and collective bargainin 
effectuates the policies of the Act. 



ization and collective bargaining and otherwise 



2. The majority status of the Union 
in the appropriate unit 

At the hearing herein, there was introduced in 
evidence by the General Counsel a list prepared by 
the Respondent containing the names of all the Re- 
spondent's employees in the unit hereinabove found 
appropriate. The list shows that on February l, 9 
the Respondent had in its employ 28 persons in the 
said unit. 10 On behalf of the General Counsel there 
were offered and received in evidence 20 signed 
cards expressly authorizing the Union to represent 
the signers for collective bargaining. The genuine- 
ness of the signatures on the cards was in some in- 
stances proved directly by the testimony of the 
signers and in some instances by witnesses to the 
signatures. The authenticity of the signatures ap- 
pearing on the cards was not challenged. 



9 It was stipulated by counsel that the persons 
whose names appeared on this list were also in the 
Respondent's employ on January 31. 



10 The list also contains the name of Frank Ogen. 
This person, the record clearly shows, and the un- 
dersigned finds, was, at all times material herein, 
a supervisor within the meaning of the Act and 
hence is excluded from the unit. The General Coun- 
sel's contention that Fred Bordeau should be ex- 
cluded from the unit on the sole ground that he 
is the son of the Respondent's service manager is 
without merit. The undersigned includes Fred Bor- 
deau in the unit. 



20 National Labor Relations Board 

The undersigned lias compared the names appear- 
ing on the aforesaid cards with the list submitted 
by the Respondent and received in evidence and 
finds that as of January 31, L950, 14 employees in 
the appropriate unit had signed cards designating 
the Union as their collective bargaining representa- 
tive. 11 Claude Leonard testified without contradic- 
tion that he joined the Union on or about January 
23. On January 30, Leonard attended a meeting of 
the Union and there he was elected senior chairman 
or shop stewai'd by his co-workers who attended the 
meeting. The undersigned accordingly finds that on 
January 31, 1950, and at all times thereafter, the 
Union was the duly designated collective bargain- 
ing representative of the Respondent's employees 
in the unit found appropriate. Pursuant to Section 
J) (a) of the Act, the Union was, therefore, the 
exclusive representative of all the employees in such 
unit For the purposes of collective bargaining in 
respect to rates of pay, wages, hours of employ- 
ment, and other conditions of employment. 

3. The refusal to bargain 

As found above Claude Leonard joined the Union 
about January 23, At a meeting held at the Union 
Hall on the evening of January 30, 6 employees of 
the Respondent Bigned eards designating the Union 
their collective bargaining representative. They also 



"One of these 14 employees signed a card on 
January 28, 6 signed on January 30, and 7 Bigned 
on January 31. 



vs. Howell Chevrolet Co., etc. 21 

selected or elected Leonard senior chairman or shop 
steward. 

The following morning, January 31, the 8 em- 
ployees who attended the Union meeting appeared 
at work wearing Union buttons; Leonard's button 
bore the inscription "Senior Chairman." Prior to 
the commencement of work that day Leonard se- 
cured the signatures of four additional employees 
to authorization cards. Three other employees 
signed authorization cards sometime during that 
day. 

Under date of January 31, after 15 of the 28 
employees in the appropriate unit had either joined 
the Union or had designated the Union their col- 
lective bargaining representative, the Union wrote 
the Respondent that it had been designated the col- 
lective bargaining representative by a majority of 
the Respondent's employees and requested recogni- 
tion. The letter concluded with a request that the 
Respondent fix a convenient time for a conference 
to discuss a collective bargaining agreement. The 
Respondent admittedly received the letter on Feb- 
ruary 1, and admittedly did not answer it. 

On January 31, the Union filed with the Board 
a representation petition. 

The Respondent's immediate reaction to the em- 
ployees' activities on behalf of the Union was to 
embark upon a campaign to destroy the Union's 
majority by demonstrating to its employees the 
futility of becoming, or remaining, members theeof . 
Thus, according to the undenied and credible testi- 



22 National Labor ]\( lotions Board 

mony of Leonard he had a conversation with Body- 
Shop Foreman Frank Ogen sometime about a week 

or 80 after January 31, wherein the following en- 
sued: 

Well, 1 was out there 4 in the body shop one day 
at noon; and he (Ogen) told nie to get away 
from him with that button on. Tie didn't want 
to get fired. So I told him there wasn't any- 
body going to get fired over the buttons. He 
said that Mr. Howell (Jackson Howell, the Re- 
spondent's president) told him he was going to 
fire anyone that joined the union. 12 

George A. Kirkland, who was formerly employed 
by the Respondent as a mechanic for approximately 
5 years prior to October, 1950, and presently self- 
employed, testified that sometime 4 during the first 

week in February, he and Leonard asked Ogen 
where Ogen "got his information that all the em- 



12 0£en did not testify. Howell denied that he 
made the statement Ogen attributed to him. 
Howell's denial does not, and can not, negate the 
violative tenor of Ogen's remarks or their coercive 

effect. Respondent's counsel contended in their 

brief, for the first time, that Frank Ogen was not 

in fact a supervisory employee, and that, conse- 
quently, the Respondent could not be held account- 
able for the latter's condud and statements. The 
record Tails utterly to support this contention. On 
the contrary, Howell admitted that Ogen was the 

body-shop foreman in February and Starch, L950. 
The record, moreover, clearly shows that the em- 
ployees regarded o^cn as foreman of the body shop 
and took orders from him. The fact that Bordeau 
was genera] Bervice manager during that time did 
not alter Ogen's status nor his powers. 



vs. Howell Chevrolet Co., etc. 23 

ployees that joined the union were going to be 
fired" and that Ogen replied that he had received 
the information from Howell the previous night. 
Former employee George A. Smith testified, and 
the undersigned finds, that Ogen asked him several 
times prior to the Board-conducted election of June 
1, what he "was going to do about the union" and 
whether he "was in the Union"; that on one oc- 
casion before the said election, Ogen asked him if 
George Kirkland had induced him to join the 
Union ; and that on another occasion, prior to the 
election, Ogen told him that "any man that joined 
the union would be fired," adding, to quote Smith, 
"He never did work in a union shop; he never 
would. He wouldn't have any union men working 
for him." 

Paul Arnold, a former employee of the Respond- 
ent, testified credibly that a day or two after Janu- 
ary 31, he asked 

him [Ogen] what he thought about the guys 
going in [the Union], and he said they had 
better watch out for their jobs, because Howell 
said to fire them all that are wearing buttons. 

Arnold further testified that a few days after the 
above related -conversation he voluntarity left the 
Respondent's employ. 

In the latter part of March or in the early part 
of April, all the shop employees were assembled by 
the Respondent. Howell opened the meeting, in- 
troduced Frederick A. Potruch, Esq., as the Re- 
spondent's counsel, and then told the assembled em- 



24 National Labor Relations Board 

plovers that Potruch would outline to them the 
Respondent's labor relations policies. 

Regarding what he told the employees, Potruch 
testified, in part as follows : 

I told them that the Company would test the 
jurisdiction of the National Labor Relations 
Board. I told them that it had been done on 
other occasions; that they were probably aware 
of that and had been told so by the union. 



* * * that I felt that if there was anything to 
be done by the company and the union that they 
were big enough to do it for themselves without 
having anyone step in and tell them w T hat to 
do and not what to do as put in the Act, and I 
have named the Act, the Taft Hartley Act * * * 

After I presented that to them I went into 
the ramifications of how the jurisdiction of the 
Board could be decided. I told them that this 
was a representation proceeding, that the union 
was asking that they represent the men to 
bargain collectively, and that it was at these 
proceedings that we would deny the jurisdic- 
tion of the Board; that there would be a formal 
hearing, thai we would have to run through 
the gamut of a formal hearing; and I told them 
thai we would still stick to our guns on the 
question of jurisdiction at all times, just as we 
have done in these proceedings. And I told 
them the only way we could get an adequate 
tesl on the question of jurisdiction, if it was 



vs. Howell Chevrolet Co., etc. 25 

to go that far, would be to go into the Circuit 
Court of Appeals as had been done in the Town- 
send case; 

* * * 

It might even necessitate — that for any com- 
pany not necessary Howell, to get a case into 
the United States Circuit Court of Appeals, it 
might be necessary to do something to be cited 
for an unfair act under the National Labor 
Relations Act that someone might have to be 
discharged, either on a friendly basis or even 
deliberately and then the charge brought 



# * * 



And then we would have a hearing on it as 
we are now having * * * 

* * * 

I also told them that it was possible for a 
company * * * that during this period in which 
there was either a friendly unfair labor charge 
or an unfair labor act or even a deliberate one 
* * * that it is possible to have what is known 
as an unfair labor strike * * * 

Potruch also told the assembled employees that 
he would fight the case to Howell's last dollar. 

Kirkland testified that Potruch stated at this 
meeting that the employees did not need a union in- 
asmuch as it was a small establishment; that the 
employees would never get a union contract from 
Howell ; that the employees would have to go out on 
strike to obtain a contract ; and that the Respondent 
would not make any change in wages or other 



26 Natio?ial Labor Relations Board 

working conditions unless the Respondent consulted 
the Union, adding "by God the company wouldn't 
do that." Other witnesses called by the General 
Counsel corroborated, in the main, Kirkland's ver- 
sion of what Potrucli said at the aforesaid meeting. 
Potnich denied making the statements to the ef- 
fect that the Respondent would not sign an agree- 
ment with the Union which statements were attrib- 
uted to him by Kirkland and others. The under- 
signed rejects Potruch 's denials and finds, on the 
other hand, that he made the said statements. The 
entire purport of Potruch's remarks, even on the 
basis of his version, as reflected by his testimony, 
was to impress upon the employees that it was fu- 
tile for them to become, or remain, members of the 
Union because the Respondent would not bargain 
with the Union or recognize it as the collective bar- 
gaining representative of the employees. The fact 
that Potruch told the employees that, even if the 
Union won the election, the Respondent would not 
bargain with the Union is implicit in the following 
question propounded under cross-examination, to 
former employee Lee Fitzhugh by the Respondent's 
counsel : 

Don't you remember him [Potruch] Baying that 
the way that they would gel the question to the 

test of the court would be — and the only way — 
that the company would have to refuse to bar- 
gainl Thai way they could get themselves be- 
fore the COUrt for review of the <|Uestion of 

jurisdiction! 
Fitzhugh replied to the above-quoted question, "I 



vs. Howell Chevrolet Co., etc. 27 

believe he said something to that effect, sir. "A sim- 
ilar question was propounded by counsel for the 
Respondent to Kirkland and he answered, "Yes." 

Each and every phrase of Potruch's address was 
designed to impress upon the employees that con- 
tinued union affiliation was a fruitless gesture and 
that they could rely upon the Respondent's uni- 
lateral generosity to attain their economic ends. This 
finding is buttressed by Potruch's statement, made 
during the course of the meeting, "if I was an em- 
ployee that I would go to the employer, state my 
problems to him and see what I could work out with 
him; and if the employer, to quote, was 'a son-of-a- 
bitch,' and wouldn't do anything for me I would go 
out and hang him. * * *" This finding is also sup- 
ported by Potruch's repeated statements that he 
w r ould fight the matter through all the courts in the 
land. 

The most reprehensible portion of Potruch's re- 
marks was his statement that the Respondent would 
not hesitate to discharge an employee for union ac- 
tivities in order to bring the matter before the 
courts. 13 

In a recent case 14 , the Board held that a publi- 
cized intention under circumstances similar to those 
in the instant case, to contest matters through the 
courts was in itself a proscribed act. In that case 
the Board said: 



13 Leonard, as found below, was, in fact, dis- 
criminatorily discharged. 

14 Metropolitan Life Insurance Company, 90 
NLRB No. 129. 



28 National Labor Relations Board 

We agree with the Regional Director's finding 
that the employer's announcement thai it would 
not bargain with r.o.IWV.A was reasonably 
calculated to impress upon the employee the 
futility of voting for U.O.P.W.A. They were 
haunted with the prospect, if U.O.P.W.A. were 
certified, of having no collective bargaining re- 
lationship with the employer for several years 
pending a final judicial determination of 
U.O.P.W.A. status. In our opinion this pros- 
pect tended to defer the agents from exercising 
a tree choice in the selection of a bargaining 
representative. . . . Accordingly, we shall over- 
rule the exceptions of the employer and shall 
order all six elections set aside. 

About 2 weeks prior to the Board-conducted elec- 
tion. Potruch again visited the plant and held meet- 
ings with small groups of employees in Bordeau's 
private office. There were 5 such meetings. At each 
of these meetings, Potruch firsl instructed the em- 
ployees how to mark their ballot at the forthcoming 
Board election, lie then said that he intended to 
sue the Onion lor libel and would tie up every 
Union hank account in the United States. He 

further stated thai the Union had used gangsters 
with respeel to organizing other automobile dealers 
and that it' the Union wanted to play rough he 
would play rough also. 

The Respondent 's counsel contended Ln their brief 
that Potruch's statements to the employees were 
protected by Section < s c of the Act. Insofar as 
presently relevant, that section provides that "The 



vs. Howell Chevrolet Co., etc. 29 

expressing of any views, arguments, or opinion . . . 
shall not ... be evidence of an unfair labor practice 
... if such expression contains no threat of reprisal 
or force or promise of benefit. ' ' The legislative his- 
tory of the Act in silhouette against the contem- 
porary background, clearly indicates that the ob- 
jective of Section 8 (c) was to preclude an inference 
of unfair conduct from an unconnected statement of 
attitude alone. It was not designed to preclude, as 
here, consideration of connected, immediate relevant 
utterances. 

Viewed in this light, Potruch's remarks at each 
meeting with the employees were violative of the 
Act. 

Assuming, arguendo, that Potruch's remarks to 
the employees did not in themselves contain any 
such threat of reprisal or force or promise of bene- 
fit, that fact, standing alone, would not bring the 
remarks within the purview of Section 8 (c) for, as 
the legislative history of the Act shows, the Con- 
gress did not intend that the threats and promises 
of benefit which remove expressions of views and 
opinions from the protection of that section must 
necessarily appear in the context of such statement. 
It was not, moreover, the intention of the Congress 
to preclude a consideration of threats or promises 
of benefits where, as here, they are implicitly and 
inextricably a part of the conduct in question. 15 



15 See 93 Cong. Rec. 4261, 3950, 6601, 6603, 6604-5, 
6673, 7002; Sen. Rep. No. 103, 80th Cong., 1st Sess., 
p. 23, 45 ; House Rep. No. 245, 80th Cong., 1st Sess., 
pp. 43, 45; House Rep. No. 245, 80th Cong., 1st 
Sess., p. 33. 



30 National Labor Relations Hoard 

Former employee I Joyce Skelton testified that 
about 2 weeks before the Board-conducted election, 

Howell told him, during the course of a conversa- 
tion lie had with Howell, "if the union was defeated, 
why, everybody would get a raise." 

Former employee William F. Hansen testified 
that a few days prior to the aforesaid election 
Howell came to the place where he worked and said 
to him, among other things, to "vote in favor of the 
plant" at the forthcoming election and that he re- 
plied, "I will do my best." 

George A. Smith, a former employee, testified 
that several days before the aforesaid election, 
Howell came up to where he was working and en- 
gaged him in a conversation, during which Howell 
stated, to quote Smith, "he didn't want the National 
Labor Board in there to tell him how to run his 
business/' Smith further testified that during the 
said conversation Howell also said that if the Union 
was defeated at the election the Respondent would 
raise the mechanics' commissions from 40 to 50 per 
c< lit. 

Howell denied making the statements attributed 
to him by Skelton, Hansen, and Smith. The three 
last named impressed the undersigned as honest and 
forthright witnesses. Howell did not so impress the 
undersigned. It was very evident to the under- 
signed, from Howell's demeanor on the witness 

stand, thai Howell was withholding the true facts. 

Under the circumstances, the undersigned finds that 

Bowell made the statements attributed to him bv 



vs. Howell Chevrolet Co., etc. 31 

Skelton, Hansen, and Smith. As a matter of fact, 
within a few days after the election, Howell an- 
nounced, at a banquet given the employees by the 
Respondent, a general wage increase which included 
a raise in commissions for mechanics to 50 per cent. 

Skelton testified credibly and without contradic- 
tion that about a week or two before the election, 
Service Manager Bordeau said to him and a group 
of about 3 to 5 other employees, during the course 
of a conversation, "if the union was defeated that 
everyone would get a raise.' ' 

Smith testified that about 2 weeks before the 
election he heard Bordeau tell Employee Kenneth 
Herrick, "if the union went in Howell would shut 
his doors.' ' 

With respect to his conversation with Herrick, 
Bordeau testified that one evening while he was in 
a bar and grill near the plant, the following ensued : 

Well, I was in there first. He [Herrick] came 
in and sat down beside me, and he said, ' * Chub, 
what about this union ? What are we going to 
do about this union deal?" And I said, "Well, 
Kenny, there is nothing to do about it but use 
your head. You do whatever you see fit, what- 
ever you think is best for you." 

Herrick 's testimony on this point, on direct exami- 
nation by Respondent's counsel, is as follows: 

Q. Now, there has been some testimony, Mr. 
Herrick, about an occasion in a place called the 
Playhouse Bar and Grill in our fair city of 



32 National Labor Relations Board 

Glendale, at which time Mr. Bordeau was there, 
you were there, and a fellow by the name of 
Mr. George Smith was there. 

Do you remember that occasion 1 ? 

A. Not exactly that one occasion. It might 
have hecn a couple of different times. 

Q. All right. Do you remember speaking 
to Mr. Bordeau in a bar about the union? 

A. Well, I wouldn't say that we spoke about 
the union — I mean, it may have been brought 
up — but not especially. 

Q. Do you recall such a conversation? 

A. Not exactly, no. 

Q. Do you recall ever saying anything to 
Mr. Bordeau in a bar about a union? 

A. No. The only thing, if anything was 
ever said, was that we would have — we were 
privileged to vote any way we wanted. 

Q. You remember something like that did 
occur ? 

A. It could have, yes, sir. 

Q. You recall who were present besides you 
and Mr. Bordeau I 

A. 1 do not; there were sometimes maybe 
four or five or six or seven of the boys who 
happened to stop there after work. 

( c ). Wluit did you say to Mr. Bordeau and 

what did he say to you? 

A. That I do not remember. 

(). You do not recall the substance of any of 

the conversations on these occasions! 
A. Definitely not. 



vs. Howell Chevrolet Co., etc. 33 

Q. I will ask you for the purpose of refresh- 
ing your recollection if you did not ask Mr. 
Bordeau what to do about the union question — 
that, or that in substance. Now, just answer 
that question yes or no. 

A. Well now, I do not think I w T ould ask 
anybody what to do about the union because 
that is my own privilege. 

Q. Mr. George Smith has testified that on 
occasions in the Playhouse Bar, at which you 
were present, Mr. Bordeau was present and Mr. 
Smith was present, that Mr. Bordeau said to 
you that if the union organized the Howell 
shop, that Mr. Howell would close it down. Did 
any such conversation ever take place ? 

A. I do not believe it did. 

Upon the entire record in the case, the under- 
signed is of the opinion, and finds, that Smith's ver- 
sion of the Bordeau-Herrick conversation to be 
substantially in accord with the facts. 

Potruch testified that sometime between February 
8 and 14, at an informal conference held at the 
Board's Regional offices at which was present, be- 
sides himself, one or two Field Examiners of the 
Board and one or more Union representatives, he 
stated that he did not believe that the Union repre- 
sented the majority of the Respondent's employees 
in the appropriate unit. He also testified that the 
Union did not then, nor since, show him, the Re- 
spondent, or any other representative of the Re- 
spondent, any evidence of its majority status. 



34 National Labor Relations Board 

Regarding this informal meeting, Edward M. 
Skagen, a Grand Lodge representative of the Union, 
testified, on direct examination by the General 

Counsel, as follows: 

Q. Mr. Skagen, there has been some testi- 
mony here thai there was a conference held, an 
informal conference, held in the National Labor 
Relations Board's office in the month of Feb- 
ruary with Mr. Fred Davis, a Board Field Ex- 
aminer, and Mr. Potruch concerning the Howell 
Chevrolet case. Did you ever attend such a con- 
ference? A. Yes, I did. 

Q. And when was that? 

A. As I recall, it was in the month of Feb- 
ruary and I believe the exact date would be 
around February the 6th. 

Q. Will you tell us who was present there 1 

A. Well, there were two Field Examiners 
from the National Labor Relations Board. One 
was Mr. James Oarr and the other one was Mr. 
Fred Davis and Mr. Frederick A. Potruch, my- 
self and I am not certain but I believe Tiny 
Gordon and John Foote were present. I am not 
sure about the latter two, however. 

Q. Will you tell us what took place at that 

conference 1 

A. Well, there was a mixup that morning. 

Mr. James Can had a case called Standard 

Coil Company of which Frederick A. Potruch 

was the attorney, and we went down int.. Mi-. 



vs. Howell Chevrolet Co., etc. 35 

Davis' office because we thought we could con- 
solidate both cases. 

Trial Examiner Myers: Who is "we'"? 

The Witness : The group of us, Frederick A. 
Potruch, myself, Mr. Carr. We went down 
there and found Mr. Davis in his office on the 
sixth floor of the National Labor Relations 
Board. The reason I remember it so well is be- 
cause Mr. Potruch w T as sitting on the edge of 
the table and he says, "I am going to surprise 
you. I am going to consent to an election. We 
admit that we are in commerce," and the com- 
merce factor had been a big factor in these 
automotive cases at that time. 

Then Mr. Potruch throws his hands up and 
says, " Da-dee-da-dee-da." 

All of us were very surprised. I would say 
that everybody including the Field Examiner 
was speechless because he had admitted com- 
merce. 

Then I says, "Oh, you are going to admit 
commerce in the Howell Chevrolet?" 

Then we were deflated because he was admit- 
ting commerce in the Standard Coil case and he 
wasn't prepared to discuss, as I remember it, 
the Howell Chevrolet case at all that day and 
would not admit to commerce. 

Q. (By Mr. Nutter) : Will you tell us what 
was said about the Howell case ? 

A. I says, "Oh, I thought we were talking 
about the Howell Chevrolet case." 



36 National Labor Relations Board 

Frederick A. Potruch, attorney, says, "Now, 
Eddie, you know thai I wouldn't admit to com- 
merce in one of these automobile cases. We arc 
going to have to go to a hearing on that. In 
fact, I didn't even bring a brief ease or any 
papers over on it." 

Then we went ahead and discussed the 
Standard Coil case and as I remember it we 
did not discuss the Bowel] Chevrolet ease any 
more that day. 

Q. Was there any other discussion of 
Howell a1 all? 

A. Not that 1 remember. In fact, I dis- 
tinctly remember there not being any further 
discussion on it. 

Q. Did Mr. Potruch say there that lie didn't 
think the union had a majority at the Howell 
Company? A. No, he did not. 

The testimony of Delmar A. Gordon, an organizer 
for the Union, is in substantial accord with that of 
Skagen. Gordon also testified thai Potruch stated 
at the above-referred-to meeting that Potruch stated 
that (1) he had no papers with him at that time 
regarding the Respondent's matter; (2) he had 

never met Howell; and he did not "know what kind 
of bU8ineS8 [Howell] is in, whether [Howell) sells 
new or used cars." 

SkageD and Gordon each denied that Potruch 
made any mention of the Tnioii's majority status or 

lack of majority status. 
The undersigned was favorably impressed by the 



vs. Howell Chevrolet Co., etc. 37 

sincere and straightforward manner with which 
both Skagen and Gordon testified. On the other 
hand, Potruch did not so impress the undersigned. 
The undersigned is firmly convinced that at no time 
prior to the election, did the Respondent, Potruch, 
or any one on behalf of the Respondent, ever enter- 
tain a doubt that the Union represented the major- 
ity of the Respondent's employees in the 
appropriate unit. Potruch 's testimony that he had 
stated at the informal conference at the Board's 
offices that he doubted the Union's majority status 
is an afterthought and is belied by the credible evi- 
dence in the record. Throughout the whole period 
involved herein, Potruch took the adamant position 
that the Respondent was not engaged in commerce 
within the meaning of the Act, and he proceeded to 
defend his client's position along that line. It is 
significant to note that Potruch did not testify that 
he ever demanded, at the informal meeting or at 
any other time, proof of the Union's majority 
status. 

Under the circumstances, the undersigned finds 
that Skagen 's and Gordon's versions of what tran- 
spired at the informal conference at the Board's 
offices in February to be substantially in accord 
with the facts. 

Upon the basis of the credible evidence in the 
case, as epitomized above, the undersigned concludes 
and finds that on and since January 31, 1950, the 
Respondent has refused to bargain collectively with 
the Union as the statutory representative of the 



38 National Labor Relations Board 

Respondent's employees in the unit found appro 
priate with respect to rates of pay, wages, hours of 
employment, and other conditions of employment, 
and by such refusal interfered with, restrained, and 
coerced its emjjloyees in the exercise of the rights 
guaranteed in Section 7 of the Act, thereby violat- 
ing Section 8 (a) (5) and (1) thereof. 

The undersigned further finds that the Respond- 
ent violated Section 8 (a) (1) by Howell's state- 
ments to Skelton, Hansen, and Smith; (2) Bor- 
deau's statements to Skelton and Herrick; (3) by 
Potruch's remarks during his two speeches to the 
employees; and (4) by Ogen's statements to Leon- 
ard, Kirkland, Smith and Arnold. 

Upon the basis of the above findings, the under- 
signed concludes and finds, that the Respondent in- 
terfered with the conduct of the Board-conducted 
election of June 1, 1950, thereby depriving the em- 
ployees of the freedom of choice of representatives 
contemplated by the Act. Accordingly, the under- 
signed recommends that the said election be set 
aside and vacated. 

B. The discriminatory discharge 

of Claude Leonard 

Leonard has been an experienced all around 
mechanic for the past 25 years. Most of his time 
(luring tbis period was spent largely in repair and 

service of Chevrolet automobiles. He is a certified 

and approved Chevrolet mechanic. For f) consecu- 
tive years he has received the General Motors di- 
ploma for having BUCCe88fully completed courses of 



vs. Hotvell Chevrolet Co., etc. 39 

instruction in Chevrolet mechanics and repair. 16 

His experience during the past 25 years included 
front end work, the overhauling and repair of mo- 
tors, transmissions, and rear ends, grinding valves, 
and other types of mechanical work performed in a 
general garage. For a period of 3 years he operated 
his own repair shop in St. Louis, Missouri. 

Leonard was first employed by the Respondent in 
1944, as a line mechanic. His duties as such re- 
quired him to overhaul motors and transmissions, 
rear end work, reline and adjust brakes, and to per- 
form front end work. After a little more than a 
year of service with the Respondent, the latter 's 
then service manager opened his own repair shop 
and Leonard went to work for him as a general 
mechanic. 

After remaining in the employ of Howell 's former 
service manager for a little over 2 years, Leonard 
secured employment with another Chevrolet dealer, 
where he remained for about a year. 

Leonard was re-employed by the Respondent in 
January, 1948, as a brake repair man. His duties as 
such required him to reline and adjust brakes, over- 
haul and repair wheel and master cylinders, and 
make other repairs on the brake system. Occasion- 
ally, during a busy period, he was requested and 
did, other types of mechanical work. For example, 
when the front end man was on vacation for 2 weeks 
in August, 1949, Leonard performed front end work 
in addition to his regular duties. Also when the 



16 His latest diploma was secured in 1950, w T hile 
in the Respondent's employ. 



40 National Labor Bi hit ions Board 

Front end man was absent during 1949, on account 
of sickness, Leonard performed his work as well as 
liis own. 

As found above, Leonard joined the Union on 
January 23, was elected or selected by his co-work- 
ers senior chairman or shop steward on January 
30, and was the leader and spearhead of the Union's 
organizational drive in the Respondent's establish- 
ment. Leonard openly solicited, and obtained many 
new adherents to the Union from among the Re- 
spondent's employees. 

On January 31, Leonard wore his senior chair- 
man button to work and admittedly the Respond- 
ent's officials saw the button on him that day. 

About a week after Leonard commenced wearing 
his said button in the shop, Ogen warned him, to 
quote Leonard's testimony kk to ^ot away from him 
w r ith that button on" because "he did not want to 
get fired" because Howell had said, that Howell 
"was going to fire anybody that joined the Union.' ' 

During the first week in February, Ogen informed 
Leonard and Kirkland, who also wore a union mem- 
bership button, that Howell said that he intended 
to discharge all members of the Union. 

Despite these warnings of Ogen's and Hordeau's 
admonition in the latter part of February that Leon- 
ard should cease campaigning for the Union in the 
shop or resign Ins job, Leonard continued his lead- 
cr<liip in the Union and continued to wear his hut- 
ton in the shop. 

While Leonard was in Respondent's employ me- 
chanics, BUCh as he, received no guaranteed wage. 



vs. Howell Chevrolet Co., etc. 41 

Their earnings were computed on a straight 40 per 
cent commission basis 17 for labor performed for 
each customer. When a mechanic had no work to 
perform he received no compensation of any sort. 

For a month or so prior to January 31 18 , Leon- 
ard's semi- weekly net earnings 19 amounted to ap- 
proximately $150. 

On January 15, Leonard received $149.96 net for 
work performed during the two-week period ending 
that date. On January 31, his net earnings were 
$150.88. For the two-week period ending February 
15, he received $98.27 net. For the two-week period 
ending February 28, he received $45.52 net. For the 
two-week period ending March 15, he received 
$69.30 net. Leonard's final pay check, which he re- 
ceived on March 31, amounted to $87.82. 

Commencing early in February and continuing 
until his discharge on March 31, Leonard and two 
of his co-workers, Kirkland and Fitzhugh, noted 
that brake adjustment work and the bleeding of the 
brake system, work which normally in the past had 
been assigned to Leonard, was being performed, 
upon instructions of Bordeau, by the men who 
worked on the lubrication rack, one of whom was 
Bordeau 's son. 



17 Within a few days after the Board election the 
commission was raised to 50 per cent. 



18 The documentary evidence does not disclose any 
earnings of Leonard prior to January 1, 1950. 



19 After deductions had been made for withholding 
tax, social security, and the like. 



42 National Labor Relations Board 

On March 15, Leonard testified on behalf of the 
Union at the hearing in the aforementioned repre- 
sentation proceeding. 

On March 31, Leonard worked overtime, and as 
he turned in liis work ticket and prepared to leave 
the shop Bordean approached and informed him 
that he was discharged. Upon asking why he was 
discharged, Bordean replied that there was not 
enough work for the brake man and the front end 
man to each make a living so the Respondent de- 
cided to combine the brake and front end jobs and 
retain in its employ the front end man. When 
Leonard protested the Respondent's action of re- 
taining Kenneth Herrick, the front end man, in- 
stead of him, stating, among other tilings, that he 
had more seniority than Herrick and could effi- 
ciently perform front end work, Bordean replied, to 
quote Leonard, "Well, that is the way it is to be 
and he could do nothing further about it." 

Admittedly, Leonard was not discharged for in- 
efficiency. The Respondent's answer averred that 
Leonard's "discharge was predicated on sound eco- 
nomic reasons and reasons of cause." Howell and 
Bordean each admitted that Leonard was dis- 
charged solely for lack of work. 

Bordean also admitted that since Leonard's dis- 
charge, Merrick's earnings have nearly doubled. In 
tact, three or four times, Berrick had to call upon 
outside help to aid him. 

Bordean testified he did not recall Leonard to 
help Berrick, instead of allowing Berrick to ob- 



v s. Howell Chevrolet Co., etc. 43 

tain outside help, because he did not know where to 
reach Leonard. This reason does not ring true be- 
cause Leonard visited the Respondent's establish- 
ment on several occasions between March 31 and 
June 1, on which latter date Howell ordered Leon- 
ard off the Respondent's premises. Furthermore, 
Herrick needed, and obtained, outside help prior to 
June 1. 

Bordeau's testimony, moreover, that he consid- 
ered Leonard's refusal, " sometime in 1949," to do 
certain front end and alignment work when he re- 
quested Leonard to do so, as evidence that Leonard 
would not be interested in the combined brake and 
front end job, and hence he did not consider Leon- 
ard for the job or did not think him capable of per- 
forming the combined job properly, is patently un- 
true. The record discloses that when Bordeau re- 
quested Leonard to do the front end and alignment 
work, Leonard was actually working on another job 
and hence was unable to undertake the proffered 
job. 

Upon the entire record in the case, the under- 
signed concludes and finds that Leonard was dis- 
charged on March 31, 1950, in violation of Section 
8 (a) (3) and (4) of the Act because of his mem- 
bership and activities in behalf of the Union and 
because he gave tesimony on March 15, 1950, in a 
formal hearing before the Board. Viewed against 
the anti-Union background of the Respondent, as 
found above, coupled with Potruch's statements 
that, if necessary, the Respondent would discharge 



44 National Labor lit hit inns Board 

a Union adherent in order to bring the entire mat- 
ter before the courts, Leonard's discharge, coming 
as it did, becomes more than a mere coincidence. 
Furthermore, it was incumbent upon the Respond- 
ent to produce its records, or other reliable evidence, 
in place and stead of the mere statements of Howell 
and Bordeau to prove that Leonard's discharge was 
necessitated by economic reasons. This is especially 
so since Bordeau admitted that subsequent to Leon- 
ard's discharge Herrick's earnings almost doubled, 
that at times Herrick needed additional help, and 
that the Respondent was then haying "a busy sea- 
son." 

IV. The effect of the unfair 
Labor practices upon commerce 

The activities of the Respondent set forth in Sec- 
tion III, above, occurring in connection with the 
operations of the Respondent described in Section 
I, above, have a close, intimate, and substantial re- 
lation to trade, traffic, and commerce among the sev- 
eral States, and such of them as have been found to 
constitute unfair Labor practices, tend to lead to 
labor disputes burdening and obstructing commerce 
and the free How of commerce. 

V. The remedy 

Having found thai Respondent has engaged in 
unfair labor practices, violating Section 8 (a), (1), 

i 3 >. i l ) and < 5 i of the Act, it will be recommended 



vs. Hoivell Chevrolet Co., etc. 45 

that it cease and desist therefrom and take certain 
affirmative action designed to effectuate the policies 
of the Act. 

Having found that the Respondent has discrim- 
inated in regard to the hire and tenure of employ- 
ment, and the terms and conditions of employment, 
of Claude Leonard the undersigned will recommend 
that the Respondent offer to Leonard immediate 
and full reinstatement to his former or substan- 
tially equivalent position 20 , without prejudice to his 
seniority and other rights and privileges. The un- 
dersigned will also recommend that the Respondent 
make Leonard whole for any loss of pay he may 
have suffered by reason of the Respondent's dis- 
crimination against him, by payment to him of a 
sum of money equal to the amount he would have 
normally earned as wages from March 31, 1950, to 
the date of the Respondent's offer of reinstatement, 
less his net earnings during that period. 21 Loss of 
pay shall be paid in accordance with the formula 
enunciated by the Board in F. W. Woolworth, 90 
NLRB No. 41. 

Having found that the Respondent has refused to 
bargain collectively with the Union as the repre- 
sentative of the majority of the employees in an ap- 
propriate unit, the undersigned will recommend 
that the Respondent, upon request, bargain collec- 
tively with the Union as the exclusive statutory rep- 



20 See The Chase National Bank of the City of 
New York, etc., 65 NLRB 827. 



21 See Crossett Lumber Co., 8 NLRB 440. 



46 National Labor B< lotions Board 

resentative of all the employees in the unit herein 
found appropriate. 

The Bcopeofthe Respondent's illegal conduct dis- 
closes a purpose to defeal self-organization among 
its employees. It sought to coerce them in the exer- 
cise of the rights guaranteed them by the Act by, 
among other things, refusing to bargain collec- 
iivch with the statutory representative of its em- 
ployees and by discriminatorily discharging Claude 
Leonard because of his Union affiliations and be- 
cause he gave testimony in a formal hearing before 
the Hoard. Such conduct which is specifically vio- 
lative of Section 8 (a) (1). (4), and (5) of the Act, 
r,.f],.,ts a determination generally to interfere with, 
coerce, and restrain its employees in the exercise of 
the right to self-organization, to form, join, or assist 
labor organizations, to bargain collectively through 
representatives of their own choosing, and to engag. 
in concerted activities for the purpose of colleetiv. 
bargaining or other mutual aid or protection, am 
presents a ready and effective means of destroying 
self-organization among its employees. Because o 
,1,,. Respondent's unlawful conduct and since then 
appears to be an underlying attitude of oppositioi 
(1|1 the part of the Respondent i<> the purposes - 
,1,,. am to protect the rights of employees genei 

ally,--' the undersigned is convinced that if the Re 
spondent is not restrained from Committing BUC 

conduct, the danger of their commission in the ft: 

_ 22Scc May Department stores Company, etc ' 
Nl.Wli. 326 1'. 8. 376. 



vs. Howell Chevrolet Co., etc. 47 

ture is to be anticipated from the Respondent's past 
conduct, and the policies of the Act will be defeated. 
In order, therefore, to make effective the interde- 
pendent guarantees of Section 7 of the Act, to pre- 
vent a recurrence of unfair labor practices, and 
thereby minimize industrial strife which burdens 
and obstructs commerce, and thus effectuate the pol- 
icies, the undersigned will recommend that the Re- 
spondent cease and desist from in any manner in- 
fringing upon the rights guaranteed in Section 7 of 
the Act. 

The undersigned further recommends that the 
June 1, 1950, election among the Respondent's em- 
ployees be set aside and vacated. 

Upon the basis of the foregoing findings of fact, 
and upon the entire record in the case, the under- 
signed makes the following : 

Conclusions of Law 

1. International Association of Machinists, Dis- 
trict Lodge No. 727, is a labor organization, within 
the meaning of Section 2 (5) of the Act. 

2. All the Respondent's employees, excluding 
salesmen, office and clerical employees, professional 
employees, guards, and supervisors as defined by the 
Act, constitute, and during all times material herein 
constituted, a unit appropriate for the purposes of 
collective bargaining, within the meaning of Sec- 
tion 9 (b) of the Act. 

3. International Association of Machinists, Dis- 
trict Lodge No. 727, was on January 31, 1950, and at 



48 National Labor Relations Board 

all times relevant thereafter lias been, the exclusive 
representative of all the employees in such unit for 
the purposes of collective bargaining within the 
meaning of Section 9 (a) of the Act. 

4. By refusing on January 31, 1950, and there- 
after, to bargain collectively with International As- 
sociation of Machinists, District Lodge No. 727, as 
the exclusive representative of all the employees in 
the appropriate unit the Respondent has engaged in. 
and is engaging in, unfair labor practices, within 
the meaning of Section 8 (a) (5) of the Act. 

5. By the said refusal the Respondent inter- 
fered with, restrained and coerced its employees in 
the exeivise of the rights guaranteed in Section 7 of 
the Act, and thereby engaged in, and is engaging in, 
unfair labor practices, within the meaning of Sec- 
tion 8(a) (1) of the Act. 

6. By discriminating in regard to the hire and 
tenure of employment of Claude Leonard, thereby 
discouraging membership in a labor organization. 
the Respondent has engaged in, and is engaging in. 
unfair labor practices, within the meaning of Sec- 
tion 8 (a) (3) of the Act 

7. By discharging and otherwise discriminating 

againsl Claude Leonard, because he had given testi- 
mony under the Ad the Respondent has engaged in, 
and is engaging in, unfair labor practices, within 
the meaning of Section 8 (a) (4) of the Act 

s. By interfering with, restraining, and coercing 
Lte employees in the exercise of the rights guaran- 



vs. Howell Chevrolet Co., etc. 49 

teed in Section 7 of the Act, the Respondent has en- 
gaged in, and is engaging in, unfair labor practices, 
within the meaning of Section 8 (a) (1) of the Act. 

9. The aforesaid unfair labor practices are un- 
fair labor practices affecting commerce, within the 
meaning of Section 2 (6) and (7) of the Act. 

Recommendations 

Upon the basis of the foregoing findings of fact 
and conclusions of law, the undersigned recom- 
mends that Howell Chevrolet Company, Glendale, 
California, its officers, agents, successors, and as- 
signs, shall : 

L. Cease and desist from : 

(a) Discouraging membership in International 
Association of Machinists, District Lodge No. 727, 
3r in any other labor organization of its employees 
3j discriminating in regard to their hire or tenure 
3f employment, or any term or condition of em- 
ployment, because of their membership in, or activ- 
ity on behalf of, any such labor organization. 

(b) Discharging or otherwise discriminating 
against any employee because he had given testi- 
mony under the Act. 

(c) In any other manner interfering with, re- 
straining, or coercing its employees in the exercise 
)f the rights to self -organization, to form labor or- 
ganizations, to join or assist the International As- 
sociation of Machinists, District Lodge No. 727, or 
any other labor organization, to bargain collectively 



50 National Labor Relations Board 

through representatives of their own choosing, an< 
to engage in concerted activities for the purpose o 
mutual aid or protection us guaranteed in Sectioi 
7 of the Act, or to refrain from the exercise of sue] 
rights. 

(d) Refusing, upon request, to bargain collec 
tively with International Association of Machinists 
District Lodge No. 727, as the exclusive represents 
tive of its employees in the above-described appro 
priate unit. 

2. Take the following affirmative action which th< 
undersigned finds will effectuate the policies o: 
the Act. 

(a) Upon request, bargain collectively with In 
ternational Association of Machinists, District 
Lodge No. 727, as the exclusive representative oi 
all the employees in the above-described appropri 
ate unit, and if an understanding is reached, em 
body such understanding in a signed agreement 

(b) Offer to Claude Leonard immediate and fill 
reinstatement to his former or substantially equiva 
lent position without prejudice to his seniority oi 
other rights or privileges. 

(c) Make whole Claude Leonard for any loss o\ 
pay he may have suffered by reason of the Respond- 
ent's discrimination againsl him by payment to him 

of a sum of money equal to the amount which hi 

normally would have earned as wages from March 

31, !!)")<). to the date of the Respondents offer of 

reinstatement, less his net earnings during that 

period. 



v&. Hoioell Chevrolet Co., etc. 51 

(d) Post in its plant at Glendale, California, 
copies of the notice attached hereto and marked Ap- 
pendix A. Copies of said notice to be furnished by 
the Regional Director for its Twenty-first Region, 
shall, after being duly signed by the Respondent, be 
posted by the Respondent immediately upon receipt 
thereof and be maintained by it for sixty (60) con- 
secutive days thereafter in conspicuous places in- 
cluding all places where notices to employees are 
customarily posted. Reasonable steps shall be taken 
by the Respondent to insure that said notices are 
not altered, defaced, or covered by any other ma- 
terial. 

(e) Notify the Regional Director for the 
Twenty-first Region, Los Angeles, California, in 
writing within twenty (20) days from the receipt 
of this Intermediate Report what steps the Re- 
spondent has taken to comply herewith. 

It is further recommended that unless on or be- 
fore twenty (20) days from the date of the receipt 
of this Intermediate Report, the Respondent noti- 
fies the said Regional Director in writing that he 
will comply with the foregoing recommendations, 
the Board issue an order requiring the Respondent 
to take the aforesaid action. 

Dated this 19th day of December, 1950. 

/s/ HOWARD MYERS, 
Trial Examiner. 



52 National Labor Relations Board 

Appendix A 

Notice to All Employees 

Pursuant to 
The Recommendations of a Trial Examiner 

of the National Labor Relations Board, and in ordei 
to effectuate the policies of the National Labor KV 
lations Act, we hereby notify our employees that 

We Will Not in any manner interfere with 
restrain, or coerce our employees in the exercise 
of their right to self-organization, to form laboi 
organizations, to join or assist Internationa 
Association of Machinists, District Lodge No 
727, or any other labor organization, to bargain 
collectively through representatives of then 
own choosing, to engage in conceited activities 
for the purpose of collective bargaining or othei 
mutual aid or protection, or to retrain from 
any and all such activities except to the extcnl 
that such rights may be affected by mi agree- 
ment requiring membership in a labor organi- 
zation as a condition of employment as author- 
ized in Section 8 (a) (3) of the National Laboi 
Relations Act. 

We Will Offer to Claude Leonard, immediate 

reinstatement to his former or substantially 

equivalent position without prejudice to senior- 
ity or oilier rights and privileges previously en- 
joyed, and will make him whole lor any loss oi 

pay suffered as a result of the discrimination. 

We Will Not discriminate againsl or dis 



vs. Hoivell Chevrolet Co., etc. 53 

charge any employees for giving testimony 
under the Act. 

We Will Bargain collectively upon request 
with the above-named Union as the exclusive 
representative of all employees in the bargain- 
ing unit described herein with respect to rates 
of pay, hours of employment or other condi- 
tions of employment, and if an understanding 
is reached, embody such understanding in a 
signed agreement. The bargaining unit is : 

All our employess, excluding salesmen, office 
and clerical employees, professional employ- 
ees, guards, and supervisors as defined by the 
National Labor Relations Act. 

All our employees are free to become or remain 
members of the above-named Union or any other 
labor organizations. We will not discriminate in re- 
gard to hire or tenure of employment or any term 
or condition of employment against any employee 
because of membership in or activity on behalf of 
any labor organization. 

HOWELL CHEVROLET 
COMPANY, 

(Employer) 



Dated 



By 

( Representative. ) (Title. ) 

This notice must remain posted for 60 days from 
the date hereof, and must not be altered, defaced, 
or covered by any other material. 



54 National Labor Relations Board 

United States of America 
Before the National Labor Relations Board 

Case No. 21-CA-794 

In the Matter of: 
HOWELL CHEVROLET COMPANY, 

and 

INTERNATIONAL ASSOCIATION OF MA- 
CHINISTS, DISTRICT LODGE No. 727. 

Case No. 21-RC-1146 
In the Matter of: 

HOWELL CHEVROLET COMPANY, 

Employer, 
and 

INTERNATIONAL ASSOCIATION OP MA- 
CHINISTS, DISTRICT LODGE No. 727, 

Petitioner. 

DECISION AND ORDER 

On December 19, 1950, Trial Examiner Howard 
Myers issued his Intermediate Report in the above- 
entitled proceedings, finding that the Respondent 
had engaged in and was engaging in certain unfair 

labor practices and recommend i Qg thai they eease 

and desist therefrom and take certain affirmative 

action as set forth in the <'<>}>y of the Intermediate 
Report attached hereto; and finding further that 



vs. Howell Chevrolet Co., etc. 55 

the Respondent had interfered with an election con- 
ducted by the Board among the Respondent's em- 
ployees and recommending that the election be set 
aside. Thereafter, the Respondent filed exceptions 
to the Intermediate Report and a supporting brief, 
and the General Counsel filed a brief in support of 
the Intermediate Report. 

The Board 1 has reviewed the rulings of the Trial 
Examiner and finds that no prejudicial error was 
committed. The rulings are hereby affirmed. The 
Board has considered the Intermediate Report, the 
exceptions and briefs, and the entire record in these 
cases, and hereby adopts the findings, conclusions, 
and recommendations of the Trial Examiner, with 
the exceptions, modifications, and additions set 
forth below: 2 

The Respondent is engaged in the sale and dis- 
tribution, at Glendale, California, of new Chevrolet 
motor vehicles, parts, and accessories, under a 



1 Pursuant to the provisions of Section 3 (b) of 
the National Labor Relations Act, the Board has 
delegated its powers in connection with these cases 
to a three-member panel. 



2 The Respondent's request for oral argument is 
hereby denied as the record, the exceptions and the 
briefs, in our opinion, adequately present the issues 
and the positions of the parties. 

The Respondent, in its exceptions and brief, 
alleges that the Trial Examiner was biased and 
prejudiced against it. We have carefully considered 
the entire record herein, and although, as noted 
hereinafter, we do not agree with all the Trial Ex- 
aminer's conclusions, w r e find that the allegations of 
bias and prejudice are without merit. 



56 National Labor Relations Board 

dealer's agreement with Chevrolet Motor Division- 
Genera] Motors Corporation. The agreement pro- 
vides for certain controls as to the Respondent's 
capita] requirements, place of business, hours, 
servicing Facilities, personnel, signs, and local area 
advertising. The Respondent is one of a limited 
number of dealers selling Chevrolet products, and, 
by virtue of its contractual relationship with 
Chevrolet Motor Division-General Motors Corpora- 
tion, is an integral part of that corporation's na- 
tional system of distribution. 3 Under the foregoing 
circumstances, and on the basis of the entire record, 
we find, as did the Trial Examiner, that the Re- 
spondent is engaged in commerce within the mean- 
ing of the Act, and that it will effectuate the 
policies of the Act to assert jurisdiction over the 
Respondent. 4 

2. The Trial Examiner found, and we agree, 
that the Respondent violated Section 8 (a) (1) of 
the Act by the following conduct which occurred 
after the Union had requested recognition and be- 
fore the election was held: (1) Body-Shop Foreman 



3 The Respondenl does not, however, as found by 
the Trial Examiner, have an "exclusive" Fran- 
chise. 



'Harbor Chevrolet Company, 93 NLRB No. 231; 
University Motors, 89 NLRB L224; Public Motors 
Co., 90 NLRB No. 273; Avedis Baxter and Ben 
Baxter, d b a Baxter Bros., 9] NLRB No. 233; 
N.L.R.B. v. Townsend, 185 V. 2d 378, cert, den., 
M\ V. S. 909. 



vs. Hoivell Chevrolet Co., etc. 57 

Ogeix 's 5 coercive anti-union statements to employees 
Leonard, Kirkland, Smith, and Arnold, to the effect 
that employees who joined the Union would be dis- 
charged, and his interrogation of employee Smith 
about the latter 's union membership and activity; 
(2) President Howell's coercive antiunion state- 
ment to employee Hansen 6 to "vote in favor of the 
plant," and his promises of benefit to employees 

5 The Respondent alleges, in its brief, that Ogen 
was not a supervisor within the meaning of the 
Act. However, at the hearing, President Howell 
referred to Ogen as the body shop foreman. Fur- 
thermore, employee Smith, who did body and 
fender work, testified that Ogen was his foreman 
and that Ogen had told him, "He wouldn't have any 
union man working under him." Employee Arnold 
also testified that Ogen was his foreman. It is thus 
clear that Ogen was regarded by both the Respond- 
ent and the employees as a supervisor. Moreover 
it was clear at the hearing that the General Counsel 
was seeking to attribute to the Respondent various 
acts of interference, which we have found violative 
of Section 8 (a) (1) of the Act, by virtue of Ogen's 
supervisory status. Yet the Respondent did not con- 
tend that Ogen was not a supervisor or come for- 
ward with evidence to rebut the testimony indicat- 
ing that Ogen was a supervisor. In the light of the 
entire record, we find that Ogen was a supervisor 
mthm the meaning of the Act and that his conduct 
was attributable to the Respondent. 

6 The record shows that among the "other things" 
referred to by the Trial Examiner which Howell 
:old Hansen before the election was a statement 
that if Hansen would vote in favor of the Respond- 
ent "he [Howell] would see that we got a raise in 
|ime." We find this statement also violative of Sec- 
ion 8 (a) (1). 



58 National Labor Relations Board 

Smith and Skcltoii to the effect that if the Union 
were defeated the employees would receive a raise; 
(3) Service Manager Boideau's promise to em- 
ployee Skelton that if the I'liion wen- defeated, the 
employees would receive a raise; and his statement 
to employee Herrick, also heard by employee Smith, 
to the effect that if the Union were victorious the 
Respondent would shut down its operations; (4) 
Attorney Potruch's address to the Respondent's 
employees in March or April 1950. 7 In finding that 
this speech violated Section 8 (a) (1), we do not 
rely on Potruch's declarations that the Respondent 
would contest the jurisdiction of the Board. 8 Nor 
do we accept the Trial Examiner's finding that 
Potruch's remarks to groups of employees about 
2 weeks before 1 the election violated Section 8 (a) 



7 In its exceptions and brief, the Respondent 
alleges that Potruch's statement that "someone 
might have to be discharged either on a friendly 
basis or even deliberately merely referred to one 
of the means whereby an employer may test the 
jurisdiction of the Hoard. However, this did not 
preclude the clear implication that Howell might 
resort to the discharge of its employees for this 
purpose. Moreover, the coercive effect of this state- 
ment was not dissipated by Potruch's declaration 
that employees could not he legally discharged ex- 
cept for economic reasons or for cause. 



Hr l ne effect of this statement on the election and 

its weight as a defense to a refusal to bargain are 
discussed separately hereinafter. 



vs. Howell Chevrolet Co., etc. 59 

(l). 9 These talks were primarily concerned with 
explaining the mechanics of marking the ballots in 
the forthcoming election. Potruch's comments re- 
garding the Union's alleged rough tactics with re- 
gard to another employer, and his threats to repay 
the Union in kind, concerned Potruch's personal 
retaliation for such tactics and for alleged deroga- 
tory remarks about him in a union pamphlet, and 
did not imply any retaliation directed against the 
Respondent's employees. Nor do we adopt the Trial 
Examiner's observations regarding the legislative 
history and purpose of Section 8 (c) of the Act. 
We do find, however, that Potruch's statement at 
one of these group meetings, as testified to by em- 
ployee Smith, who was generally credited by the 
Trial Examiner, that " there would be a new deal 
after the first of the month," 10 was a promise of 
benefit violative of Section 8 (a) (1) of the Act. 

3. The Trial Examiner found that employee 
Leonard was discharged on March 31, 1950, because 
of his membership in and activities on behalf of the 
Union, and because he gave testimony in the rep- 
resentation proceedings herein, and that the Re- 
spondent thereby violated Section 8 (a) (3) and 
(4) of the Act. Upon an examination of the entire 



9 In finding that Potruch's "two speeches" vio- 
lated Section 8 (a) (1), the Trial Examiner ap- 
parently had reference to the talk repeated to 
several groups of employees about 2 weeks before 
the election as the second speech. 



10 The election was held on June 1, 1950. 



60 National Labor Relations Board 

record herein, including the testimony of the wit- 
nesses at the representation hearing, we arc of the 
opinion, however, that the record does not establish 
that Leonard's testimony, as distinguished From his 
union membership and activity, was a motivating 
factor in his discharge. Accordingly, we shall dis- 
miss the complaint insofar as it alleges that 
Leonard's discharge violated Section 8 (a) (4) of 
the Act. We are convinced, however, that Leonard 
was discharged because of his Leadership in union 
activities among the Respondent's employees, as 
set forth in the Intermediate Report, and we there- 
fore find, as did the Trial Examiner, that the Re- 
spondent by discharging him violated Section 8 (a) 
(3) of the Act. 11 

4. The Trial Examiner found, and we agree, 
that the Respondent refused to bargain with the 
Union in violation of Section 8 (a) (5) of the 
Act; 12 and also, that the election of June 1, 1950, 
did not represent the free and uncoerced choice of 



n In arriving at this conclusion, we do not, how- 
ever, adopt the Trial Examiner's remarks thai 
under the circumstances, k 'it was incumbent upon 
the Respondent to produce its records or oilier re- 
liable evidence, in place 1 and stead of the mere state- 
ments of Bowel! and Bordeau, to prove that 
Leonard's discharge was necessitated by economic 
reasons." 



'Although Member Murdoch would dissent from 
this finding for the reasons stated in his dissenting 
opinion in the M. II. Davidson Company case, 94 
NLRB No. :;i, he considers himself bound by the 
majority's decision in that case. 



vs. Howell Chevrolet Co., etc. 61 

the Respondent's employees and should be set 
aside. We date the Respondent's refusal to bar- 
gain, however, from February 1, 1950, when the 
Respondent received the Union's request for rec- 
ognition, and not, as did the Trial Examiner, from 
January 31, 1950, when the Union achieved a ma- 
jority and mailed its recognition request to the 
Respondent. 

Upon receipt of the Union's request for recogni- 
tion, which the Respondent ignored, it promptly 
embarked on a campaign of unfair labor practices, 
which included interrogation of its employees con- 
cerning their union membership and activity, 
threats of reprisal against them if they joined the 
Union or selected it as their bargaining representa- 
tive, promises of benefit if they rejected the Union, 
and the discharge of employee Leonard because, 
as we have found, of his union membership and 
activity. Nor did the Respondent fail to respond 
to the Union's request for recognition because it 
was awaiting the outcome before the Board of the 
representation proceeding. On the contrary, the 
Respondent told its employees that the Board did 
not have jurisdiction over its operations, and that 
it would not abide by the Board's determination in 
that proceeding if the Board resolved the jurisdic- 
tional issue against the Respondent, but would liti- 
gate that issue to the Respondent's "last dollar" 
through the Supreme Court, if necessary. 

Under the foregoing circumstances, and on the 
basis of the entire record, we are convinced that 



62 National Labor Relations Board 

the Respondent did not withhold recognition of the 
Union because of a good Faith doubt of the Union's 
majority in an appropriate unit. 13 We find, on the 
contrary, that the Respondent's refusal to recognize 

the Union on February 1, 1950, and thereafter, was 
motivated by a desire to gain time in which to de- 
stroy the Union's majority, and by a rejection of 
the collective bargaining principle. 14 Furthermore, 
we do not regard the Respondent's asserted desire 
to contest the Board's jurisdiction as a defense to 
its refusal to bargain with the majority representa- 
tive of its employees. 15 



,:i \Ve also note in this connection Potruch's testi- 
mony that in the course of his address to the em- 
ployees in March or April, 1950, he told them "that 
I would not have 1 gone out and paid anybody to go 
in and represent me until I first had the opportu- 
nity to do my own talking/' and "that it had gone 
too far for any of the men to do that; that they had 
selected voluntarily somebody to represent them 
and that person would do all their talking for them 
at any time they wanted to." 



ujoy Silk Mills v. N.L.R.B., L85 F. 2d 732 (C. A.. 
I). 0.); N.L.R.H. v. Everett Van Kleeck & Com- 
pany, Inc., No. 202, May 31, 1951; C. A. 2. 

Indicative of the Respondent's attitude toward 

collective bargaining are Potruch's statement- i<» 

the employees in the latter part of April, 1950, 
that if they had any problems they could take them 

to Bowell, who would straighten them out, that if 

he did not they should take a rope and hang him, 
and that the Respondent didn't like a group of men 
in Washington telling it how to run its business. 



'"'The Strang Oarage Company, 93 NLRB No. 
158. 



vs. Hoivell Chevrolet Co., etc. 63 

5. We have found that attorney Potmen's state- 
ments to the Respondent's employees that the 
Respondent would contest the jurisdiction of the 
Board did not violate Section 8 (a) (1) of the Act. 
However, we find that these statements were cal- 
culated to impress upon the Respondent's em- 
ployees the futility of voting for the Union and 
that the Respondent thereby, as well as by the 
conduct which we have found violated Section 8 
(a) (1) and (3), created an atmosphere incom- 
patible with the freedom of choice of its employees 
in their selection of a bargaining representative, 
thus interfering with the election. 16 The Respond- 
ent urges, however, that by proceeding with the 
election herein with knowledge of the Respondent's 
interference with the election, the Union waived its 
right to have the election set aside. We find this 
contention to be without merit. As no genuine ques- 
tion concerning representation existed at any time 
by reason of the Respondent's bad faith in refusing 
to recognize the Union, we regard the election as a 
nullity and shall set it aside. 17 

The Remedy 

As recommended by the Trial Examiner, we shall 
order the Respondent to offer to the discharged 
employee listed in our Order reinstatement with 



16 Metropolitan Life Insurance Companv, 90 
NLRB No. 129. 



17 The M. H. Davidson Company, supra, 



64 National Labor Relations Board 

back pay from the date of the discrimination 
againsl him. However, the Board has recently 
adopted a method of computing back pay different 
from that prescribed by the Trial Examiner. 18 Con- 
sistent with that policy, we shall order that the 
loss of pay be computed on the basis of each 
separate calendar quarter or portion thereof during 
the period from the Respondent's discriminatory 
action to the date of reinstatement, or a proper 
offer of reinstatement The quarterly periods, here- 
inafter called "quarters," shall begin with the first 
day of January, April, duly, and October. Loss of 
pay shall be determined by deducting, from a sum 
equal to that which this employee would normally 
have earned for each quarter or portion thereof, 
his net earnings, 19 if any, in other employment dur- 
ing that period. Earnings in one particular quarter 
shall have no effect upon the back-pay liability for 
any other quarter. 

We shall also order, in accordance with the Wool- 
worth decision, supra,, that the Respondent, upon 
request, make available to the Board and its agents 
all records necessary to analyze the amount of back 
pay due and the right of reinstatement under the 
terms of our Order. 

Order 

Upon the entire record in these <-ascs, and pur- 
suant to Section lo (o of the National Labor Re- 
lations Act, the National Labor Relations Board 



»F. W. Woolworth Company, 90 NLRB No. 41 



IKJroasett Lumber Company, 8 NLEB HO, 497-8. 



vs. Hoivell Chevrolet Co., etc. 65 

hereby orders that the Respondent, Howell Chev- 
rolet Company, Grlendale, California, its officers, 
agents, successors, and assigns, shall: 

1. Cease and desist from: 

(a) Discouraging membership in International 
Association of Machinists, District Lodge No. 727, 
or any other labor organization of its employees, by 
discriminating in regard to their hire or tenure of 
employment, or any term or condition of employ- 
ment, because of their membership in, or activity 
on behalf of, any such labor organization. 

(b) By means of interrogation, threats of re- 
prisal, promises of benefit, or in any other manner, 
interfering with, restraining, or coercing its em- 
ployees in the exercise of the right to self-organiza- 
tion, to form labor organizations, to join or assist 
International Association of Machinists, District 
Lodge No. 727, or any other labor organization, to 
bargain collectively through representatives of their 
own choosing, and to engage in concerted activities 
for the purpose of mutual aid or protection as 
guaranteed in Section 7 of the Act, or to refrain 
from the exercise of such rights. 

(c) Refusing, upon request, to bargain collec- 
tively with International Association of Machinists, 
District Lodge No. 727, as the exclusive representa- 
tive of all its employees at its Grlendale, California, 
plant, excluding salesmen, office and clerical em- 
ployees, professional employees, guards, and super- 
visors as defined by the National Labor Relations 
Act. 



66 National Labor Relations Board 

2. Take the following affirmative action wind 
the Board finds will effectuate the policies of th< 
Act: 

(a) Upon request, bargain collectively with In 
teraational Association of Machinists, Distric 
Lod^e No. 727, as the exclusive representative o 
all the employees in the above-described appropri 
ate unit, and if an understanding is readied, em 
body such understanding in a signed agreement. 

(b) Offer to Claude Leonard immediate and ful 
reinstatement to his former or a substantiall] 
equivalent position without prejudice to his senior 
ity or other rights or privileges. 

(c) Make whole Claude Leonard, in the mannei 
set forth in the section entitled "The Remedy,' 
for any loss of pay which he may have suffered b} 
reason of the Respondent's discrimination against 
him. 

(d) Upon request, make available to the Boarc 
or its agents for examination and copying, all pa;s 
roll records, social security payment records, time 
cards, personnel records and reports, and all othei 
records necessary t<» analyze the amount of bad 
pay due and the right of reinstatement under flu 
terms of this Order, 

(e) Post in its plant at Qlendale, California^ 

copies of the notice attached hereto mid marked 
"Appendil A."-" Copies of said notice to he fnr- 



''•In the event thai this Order is enforced l>\ i 

decree of ;i United States Courl of Appeals, there 

Bhall he inserted m the notice, before the words, "A 
Decision and Order/' the words, "A Decree of the 
Tinted States Court of Appeals Enforcing." 



vs. Howell Chevrolet Co., etc. 67 

nished by the Regional Director for the Twenty- 
first Region, shall, after being duly signed by the 
Respondent, be posted by the Respondent immedi- 
ately upon receipt thereof and be maintained by it 
for sixty (60) consecutive days thereafter in con- 
spicuous places, including all places where notices 
to employees are customarily posted. Reasonable 
steps shall be taken by the Respondent to insure 
that said notices are not altered, defaced, or cov- 
ered by any other material. 

(f) Notify the Regional Director for the 
Twenty-first Region, in writing, within ten (10) 
days from the date of this Order what steps the 
Respondent has taken to comply herewith. 

And It Is Further Ordered that the election in 
Case No. 21-RC-1146 be set aside, and that the peti- 
tion therein be, and it hereby is, dismissed. 

And It Is Further Ordered that the complaint, 
insofar as it alleges that the Respondent violated 
Section 8 (a) (4) of the Act be, and it hereby is, 
dismissed. 

Signed at Washington, D. C, July 23, 1951. 

JOHN M. HOUSTON, 
Member ; 

ABE MURDOCK, 
Member ; 

PAUL L. STYLES, 

Member, 

[Seal] NATIONAL LABOR 

RELATIONS BOARD. 



68 National Labor Relations Board 

Appendix A 

Notice to All Employees 

Pursuant to 
A Decision and Order 

of the National Labor Relations Board, and in 
order to effectuate the policies of the National 
Labor Relations Act, we hereby notify our em- 
ployees that: 

We Will Not discourage membership in 
International Association of Machinists, Dis- 
trict Lodge No. 727, or in any other labor 
organization of our employees, by discriminat- 
ing in regard to their hire or tenure of employ- 
ment, or any term or condition of employment, 
because of their membership in, or activity on 
behalf of, any such labor organization. 

We Will Not by means of interrogation, 
threats of reprisal, promises of benefit, or in 
any manner, interfere with, restrain, or coerce 
our employees in the exercise of their righl to 
self-organization, to form Labor organizations, 

to join or assist international Association of 
Machinists, District Lodge No. 7H7, or any 
other labor organization, to bargain collectively 
through representatives of their own choosing, 
to engage in concerted activities for the pur- 
pose of collective bargaining or other mutual 
aid or protection or t<» refrain from any or all 

such activities exoepl to the extent that such 

rights may be affected by an agreement requir 



vs. Hoivell Chevrolet Co., etc. 69 

ing membership in a labor organization as a 
condition of employment as authorized in Sec- 
tion 8 (a) (3) of the National Labor Relations 
Act. 

We Will offer to Claude Leonard immediate 
reinstatement to his former or substantially 
equivalent position without prejudice to senior- 
ity or other rights and privileges previously 
enjoyed, and will make him whole for any loss 
of pay he may have suffered as a result of the 
discrimination against him. 

We Will bargain collectively, upon request, 
with the above-named union as the exclusive 
representative of all our employees in the bar- 
gaining unit described herein, with respect to 
rates of pay, wages, hours of work, or other 
terms and conditions of employment, and if an 
understanding is reached, embody such under- 
standing in a signed agreement. The Bargain- 
ing Unit is : 

All our employees, excluding salesmen, office 
and clerical employees, professional employees, 
guards, and supervisors as defined by the Na- 
tional Labor Relations Act. 

All our employees are free to become, or refrain 
from becoming members of the above-named union 
3r any other labor organization, except to the extent 
:hat this right may be affected by an agreement in 
3onformity with Section 8 (a) (3) of the amended 
ict. We will not discriminate in regard to hire or 
:enure of employment or any term or condition of 



70 



National Labor Relation* Board 



employment against any employees because of mem- 
bership in or activity on behalf of any labor organi- 
zation. 



Dated 



HOWELL CHEVROLET 
COMPANY, 

(Employer.) 



By 



(Representative. ) ( Tit] e. ) 

This notice must remain posted for 60 days from 
date hereof, and must not be altered, defaced, or 
covered by any other material. 



vs. Howell Chevrolet Co., etc. 71 

Before the National Labor Relations Board 
Twenty-First Region 

Case Nos. 21-CA-794 and 21-RC-1146 

In the Matter of: 
HOWELL CHEVROLET COMPANY, 

Employer, 
and 

INTERNATIONAL ASSOCIATION OF MA- 
CHINISTS, District Lodge No. 727. 

Tuesday, October 31, 1950 

Pursuant to notice, the above-entitled matter came 
on for hearing at 10:00 a.m. 

Before : Howard Myers, Trial Examiner. 

Appearances : 

RALPH H. NUTTER, 

Appearing on Behalf of General Counsel. 

EDWARD M. SKAGEN, and 

DELMAR GORDON, 

Appearing on Behalf of International As- 
sociation of Machinists, District Lodge 
No. 727, also on Behalf of Research De- 
partment, Machinists Building, Wash- 
ington, D. C. 

CARTER & POTRUCH, by 
FREDERICK A. POTRUCH, and 
JAMES M. NICOSON, 

Appearing on Behalf of Howell Chevrolet 
Company. [2*] 

* Page numbering appearing at top of page of original Reporter's 
Transcript of Record. 



72 National Labor Relations Board 

PROCEEDINGS 

(The documents heretofore marked General 
Counsel's Exhibits Nos. 1-A to 1-N, inclusive, 
for identification, were received in [11] evi- 
dence.) 

* * # 

(The document heretofore marked General 
Counsel's Exhibit No. 2, for identification, was 
received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No. 2 

Howell Chevrolet Co. 
. 1000 So. Brand Blvd. 
Glendale 4, Calif. 

New Cars 
Parts Accessories & Trucks 
1949 Purchases from 

Chevrolet Division, 

Van Nuys ! 65,377.18 63,767.83 960,797.97 

1949 Purchases from 
Others in State 
of California 22,865.18 14,375.17 

88,242.36 78,143.00 
No ( toil of State purchases. 

1949 Sales— New Chevrolet Passenger Cars 1,103,075.00 

1949 Sales— New Chevrolet Commercial Cars 143,737.85 

1,246,812.85 
All in the State of California. 
1949 Sales Parts 136,029.85 

Sales— Accessories 120,820.77 

All in the Stale of ( 'alil'ornia. 
Admitted October 31, I960, 



(The document heretofore marked General 
Counsel's Exhibit No. 3, for identification, was 
received in evidence.) [13] 



vs. Howell Chevrolet Co., etc. 



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vs. Hoivell Chevrolet Co., etc. 75 

Mr. Nutter: I have in my possession a photo- 
static copy which I have had marked for identifi- 
cation as General Counsel's Exhibit No. 5. This 
photostatic copy was made from an original sup- 
plied by the Respondent's counsel, Mr. Potruch. 
This is a "Direct Dealer Selling Agreement" be- 
tween the Howell Chevrolet Company and the 
Chevrolet Motor Division-General Motors Corpora- 
tion. 

I believe, Mr. Potruch, that this agreement is 
now in effect? Is that correct? 

Mr. Potruch : Yes, sir. 

Mr. Nutter: And either this agreement or one 
similar to [14] it will be in effect for the year 1950? 
Is that right? 

Mr. Potruch : We do not know how long. I mean 
there is an agreement in effect which is similar to 
it or this one; and until it is revoked, it is good. 

* # * 

(The Document heretofore marked General 
a Counsels Exhibit No. 5, for identification, was 
received in evidence.) 



GENERAL COUNSEL'S EXHIBIT No. 5 

Form No. GSD-201-Chevrolet-49 

Chevrolet Motor Division 
General Motors Corporation 

Direct Dealer 
Selling Agreement 

This Agreement, made this 1st day of Nov., A.D, 



7G National Labor Relations Board 

1949, by and between Chevrolet Motor Division- 
General Motors Corporation, hereinafter called 
Seller, and Howell Chevrolet Company of Glendale 
Los Angeles County, California, a corporation, here- 
inafter called Dealer. 

Witnesseth : 

In Consideration of the promises hereinaftei 
made by the parties to each other, it is agreed as 
follows : 

First: Seller will sell and Dealer will bu\ 
Chevrolet motor vehicles and chassis, subject tc 
the terms and conditions hereof, and Dealer shall 
properly develop the sale of Chevrolet motor vehi- 
cles and chassis in the following territory: 

* * # 

Fourth: This Agreement shall continue in force 
and govern all relations and transactions between 
the parties hereto for a term expiring October 31 

1950. At the end of such term, this Agreement shall 
automatically terminate without notice or action or 
the part of either party unless sooner terminated 
as hereinafter provided. 

Admitted October 31, 1950. 



(Thereupon the document above referred t< 
was marked General Counsel's Exhibit X<>. 5-A 
tor identification.) [15] 



vs. Howell Chevrolet Co., etc. 11 

(The document heretofore marked General 
Counsel's Exhibit No. 5-A, for identification, 
was received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No. 5-A 

Date November 1, 1949 
Zone Los Angeles, California. 
Los Angeles, California 

The area within the corporate limits of Los 
Angeles including the area lying within the follow- 
ing boundaries ; bounded on the South by the center 
line of Imperial Highway East from Redondo 
Boulevard to the Los Angeles River, North along 
the West Bank of the Los Angeles River to 
Atlantic Boulevard, North on Alantic Boulevard 
and Goodrich Boulevard to Olympic Boulevard, 
East on Olympic Boulevard to Simmons Avenue, 
North on Simmons Avenue to the Junction of 
Beverly Boulevard and the Western corporate 
limits of Montebello, North along the Western cor- 
porate limits of Montebello and Monterey Park to 
Coyote Pass Road, Southwest on Coyote Road to 
Floral Drive, West on Floral Drive to Eastern Ave- 
nue, North on Eastern Avenue to Valley Boulevard, 
Northeast on Valley Boulevard to the Western Cor- 
porate limits of Alhambra, South Pasadena, Pasa- 
dena, and then West and North along the Glendale 
corporate limits to crest of the San Rafael Hills, 
West along the San Rafael Hills to the Junction 
of Verdugo Road and La Canada Boulevard, North 
on La Canada Boulevard to Colina Drive, West on 
Colina Drive to the Glendale corporate limits, then 



78 National Labor Relations Board 

follow the Glendale corporate limits West and Sout 
to the Los Angeles River, West along the Los Ai 
geles River to the corporate limits of Universal Cit; 
around the South corporate limits of Universal Cit 
to the Junction of Cahuenga and Lankershim Bouh 
vanls, South on Lankershim Boulevard and its e: 
tended line to Mulholland Highway, West o 
Mulholland Highway to Sullivan Canyon, South o 
Sullivan Canyon to the intersection of Sunset Bouh 
vard and Rockingham Avenue, continuing South o 
Rockingham Avenue to the East corporate limil 
of Santa Monica, Southeast along the East corp( 
rate limits of Santa Monica to Montana Avenm 
East on Montana to Centinela Avenue, South an 
East on Centinela to Pico Boulevard, East on Pic 
Boulevard to Sepulveda Boulevard, Southeast o 
Sepulveda Boulevard to Centinela Boulevard, Ea^ 
on Centinela Boulevard to Redondo Boulevarc 
and South on Rendondo Boulevard to Imperii 
Highway. The above area includes all of the follow 
ing cities: Bell, Beverly Hills, Eagle Rock, Holh 
wood, Huntington Park, Inglewood, Maywooc 
Palms, Vernon, Westwood; and those parts of th 
following cities included within the above boundar 
descriptions; Culver City, Glendale, Los Angelei 
Lynwood, South (late, W. Los Angeles, Lennox an 
Belevedere Gardens. 

Admitted October 31, 1950. 



(Thereupon the document above referred t 

was marked General Counsel's Exhibit No. W 
for identification.) 



vs. Howell Chevrolet Co., etc. 79 

(The document heretofore marked General 
Counsel's Exhibit No. 5-B, for identification, 
was received in evidence.) [16] 

GENERAL COUNSEL'S EXHIBIT No. 5-B 

Chevrolet Motor Division 
General Motors Corporation 

Metropolitan Area Addendum 

To Dealer Selling Agreement 

The following is expressly declared to be a modi- 
fication of your Selling Agreement and is hereby 
approved as such by the General Sales Manager of 
Chevrolet Motor Division, General Motors Corpora- 
tion, hereinafter called "Seller": 

"Seller has made a survey or an analysis of ter- 
ritories, hereinafter called Metropolitan Areas, 
which include cities having a population of 50,000 
or more or in which two or more Chevrolet dealers 
have common sales responsibility, and has deter- 
mined thereupon the maximum number of dealers 
to be located in each Metropolitan Area and the ap- 
proximate geographical locations of such dealers. 
In any Metropolitan Area, however, where Seller 
shall not have made such a survey or analysis, the 
maximum number of Chevrolet dealers and their 
approximate geographical locations and, in addi- 
tion, the number of established open points shall 
be the same as those appearing on Seller's records 
as of November 1, 1949. 



80 Xafiuiifil Labor Relation* Board 

"Seller lias informed the dealers located within 
each Metropolitan Area as to the maximum numhei 
of dealers to he located therein and their approxi- 
mate geographical locations, and no changes h 
respect thereto will he made unless and until i 
survey, analysis or review of such Metropolitan 
Area has been made and at least sixty (60) day* 
notice of such proposed change shall have beer 
given to each Chevrolet dealer located therein sc 
that such dealer may, if he so desires, discuss same 
with Seller prior to the effective date of sucl 
change; provided, however, that such notice may b* 
waived by mutual consent of Seller and all dealers- 
located in such Metropolitan Area; and providee 
further, that if the Selling Agreement of a Chev- 
rolet dealer located in a Metropolitan Area has beei 
terminated or a dealer has knowledge that termina- 
tion by either party will take place, or that termina- 
tion by expiration without the grant of a furthei 
Agreement by Seller will become effective, and ;ii 
that time such dealer is handling or undertakes t< 
handle another line of motor vehicles. Seller ma} 
appoint, or cause to he appointed, a Chevrolet 
dealer to be located in such Metropolitan Area on. 
month thereafter, even though the appointment o1 
such dealer may raise temporarily the number 01 
Chevrolet dealers in such Metropolitan Area abov< 
the said maximum. 



vs. Howell Chevrolet Co., etc. 81 

"The word 'dealers' herein shall be construed to 
include both dealers and associate dealers." 

CHEVROLET MOTOR DIVISION, GENERAL 
MOTORS CORPORATION. 

/s/ W. E. FISH, 

General Sales Manager. 

Per /s/ J. W. STEELE, 
Zone Manager. 

(Dealer should file this Addendum with his 
current Selling Agreement.) 

Admitted October 31, 1950. 



(The document heretofore marked General 
Counsel's Exhibit 5-C, for identification, was 
received in evidence.) [17] 



82 National Labor Relations Board 

GENERAL COUNSEL'S EXHIBIT No. 5-C 

Direct Dealer 

Selling 

Agreement 

Chevrolet Motor Division 
General Motors Corporation 

Form No. GSD-202-Chevrolet 

Identification No. 49 — 1466 

Chevrolet Motor Division 
General Motors Corporation 

Terms and Conditions 

Direct Dealer 
The following Terms and Conditions have by refer- 
ence been incorporated in and made a part of the 
Selling Agreement which shall apply to and govern 
all transactions, dealings and relations between the 
parties : 

Selling Rights, Terms and Conditions of Sale 

1. Dealer's Selling Privilege 
While this Agreement shall he and remain in 
effect, Dealer shall have the non-exclusive privilege 
of selling new Chevrolet motor vehicles and chassis 
and the privilege of using the word "Chevrolet" 
and the Chevrolet trade-mark or trade-marks, in- 
cluding the distinctive outline or Form thereof, as 
applied to Chevrolet motor vehicles and chassis 
parts and accessories. 



vs. Howell Chevrolet Co., etc. 83 

2. Handling of Dealer's Orders 

A. Three Months' Estimate of Requirements 

Dealer will, unless otherwise advised by Seller, 
furnish Seller for its general guidance every month, 
on the date specified by Seller, but not later than 
the sixth day of each month, an estimate, on forms 
provided by Seller, of his requirements of new 
Chevrolet motor vehicles and chassis for the three 
(3) calendar months next following, each month's 
estimate to be shown separately. 



C. Orders 

Dealer's orders for Chevrolet motor vehicles and 
chassis shall be submitted upon order forms sup- 
plied by Seller, at intervals mutually satisfactory. 
If, however, in any month Seller does not ship the 
standard products which were scheduled for de- 
livery during that month, the orders for such un- 
delivered standard products will remain in effect 
unless cancelled in whole or in part by either Seller 
or Dealer upon written notice served by the one 
upon the other. 

* * # 

12. Dealer's Place of Business 
Satisfactory to Seller 

Dealer will maintain a place of business includ- 
ing salesroom, service station, parts and accessories 
facilities, and used car facilities satisfactory to 
Seller and will maintain the business hours custom- 
ary in the trade. Dealer will permit Seller to 



84 National Labor Relations Board 

inspect said place of business at all reasonable 

times in business hours. 

Dealer will not move to or establish a new loca 
tion, branch sales office, branch service station o: 
place of business including any used car lot o: 
location without the prior written consent of Seller 



14. Capital Requirements 

Since the amount and structure of working capi 
tal and net worth required to handle properly th< 
business to be conducted by Dealer hereunder de 
pends upon many factors, including size of market 
sales and service facilities required, anticipated 
volume and others and since Seller has set standards 
for Dealer capital and net worth based on Seller's 
past experience, Dealer shall establish his ownec 
net working capital and net worth in the respective 
amount and form specified by Seller. If the amouni 
of owned net working capital or net worth or tin 
way in which either is set up is now or hereaftei 
inadequate in Seller's estimation for the propel 
handling of Dealer's business, Dealer will take the 
necessary steps to meet Seller's applicable require- 
ments within the time determined by Seller. 

* * * 

F. Mechanical Staff 

Employ a sufficient number of competent mechan- 
ics to meet adequately the service requirements of 
the Chevrolet owners in Dealer's zone of influence. 



vs. Howell Chevrolet Co., etc. 85 

J. Inspection of Facilities 

Permit Seller to inspect and check over Dealer's 
service facilities and stock of parts and accessories 
at any reasonable time in business hours. 

22. Signs 

Dealer will purchase, erect, and maintain at his 
expense the following signs as hereinafter specified: 

A. A standard product electric sign in a 
conspicuous place outside his showrooms pro- 
vided the erection thereof is not prohibited by 
municipal ordinance or statute. 

B. A standard authorized service sign in a 
suitable location on the outside of Dealer's 
place of business. 

C. Such other signs as are necessary to ad- 
vertise his business properly on a basis mutu- 
ally satisfactory to both Seller and Dealer. 



24. Advertising Fund 

In order to give to Chevrolet dealers the advan- 
tages of a comprehensive and coordinated dealer 
advertising program, an Advertising Fund, com- 
posed of a dealer portion and a factory portion, 
has been established and is administered by Seller 
for the purpose of supporting such a program. 

A. Dealer Portion of Fund 

Seller will collect the sum of Twelve Dollars 
($12.00) for each new Chevrolet motor vehicle and 



86 National Labor Relations Board 

chassis purchased and paid for by Dealer, and sue! 
sums will be credited to the dealer portion of tin 
Advertising Fund for the account of Dealer. 

The amounts contributed by Dealer shall be usee 
solely in paying the cost of local advertising, in 
eluding preparation expense, in Dealer's territory 
through such local advertising media as, in the 
judgment of Seller, will benefit Dealer. If a dealei 
desires to participate in local advertising in a com 
munity outside his zone of influence, he may do sc 
provided that he shall have secured the consent ir 
writing of the dealer or dealers in whose zone o1 
influence such community is located, and shall have 
reached an agreement in writing as to the amoun 
per car which is to be taken out of his contributions 
to the Advertising Fund and applied to such adver 
tising. A copy of said consent and agreement shal 
be furnished to Seller. 

All local advertising to be paid for out of th( 
dealer portion of the Advertising Fund shall carr\ 
the name and address of Dealer except that if, ir 
the judgment of Seller, that is impractical, a suit 
able group reference will be used. 

Contributions to said Fund shall be accounted foi 
separately. However, contributions to the Func 
shall be credited to the Fund for the joint accounl 
of all dealers involved where two or more Chevro- 
let dealers are located in the same city or town 01 
where one or more dealers are located in a commu- 
nity suburban to a large city and in the jlldgmerf 
of Seller advertising in said large city substantially 



vs. Howell Chevrolet Co., etc. 87 

covers such suburban community, or where two or 
more dealers are located within a group of commu- 
nities which, in the judgment of Seller, may be con- 
sidered as a common area for purposes of local 
advertising; contributions by all other dealers shall 
be credited to the Fund for the separate account of 
each dealer involved. 

With respect to contributions of dealers located 
in cities, towns, or communities as aforesaid, which 
are credited to the Fund for the joint account of 
the dealers involved, the unspent portion, if any, 
of any such dealer's contribution, upon termination 
of this Agreement, shall remain in said joint account 
and shall be used in the payment of the cost of local 
advertising and not refunded to Dealer. With re- 
spect to contributions of all other dealers which are 
credited to the Fund for the separate account of 
each such dealer, the unspent portion, if any, of any 
such dealer's contribution, upon termination of such 
dealer's Selling Agreement, shall be refunded to 
such dealer. 

As soon as practicable after the close of each 
calendar year during the term of this Agreement, 
or in the event of termination of this Agreement, 
as soon as practicable after the effective date of 
termination, Dealer shall be furnished with a state- 
ment of his account in dealer portion of said Fund 
)r of the joint account to which he has contributed. 
inch statement shall show the total advertising ex- 
penditures by media classification charged against 
;aid account, the total collections and the resulting 



88 National Labor Relations Board 

balance, and in the case of a joint account, th( 
amount of the individual contribution of Dealer. 

B. Factory Portion of Fund 

Seller will pay into the Advertising Fund th< 
sum of Three Dollars and Seventy-five Cents ($3.75; 
for each new Chevrolet motor vehicle and chassii 
purchased and paid for by Dealer, and such sum: 
will be credited to the factory portion of the Ad 
vertising Fund. 

The factory portion of the Fund may be used b: 
Seller for advertising of such type in such medi; 
and at such time and place as, in the opinion o 
Seller, will most effectively serve the dealer need 
or interests as determined by Seller. 

Admitted October 31, 1950. 



JACKSON HOWELL 
a witness called by and on behalf of the Genera 
Counsel, being first duly sworn, was examined am 

testified as follows : 

* * * 

Direct Examination 
By Mr. Nutter: 

Q. Mr. Howell, what is your occupation'? 

A. An automobile dealer. 

Q. And do you have any occupational classifier 
tion with the Respondent Howell in this eat 

A. President of Howell Chevrolet Company. 



vs. Howell Chevrolet Co., etc. 89 

(Testimony of Jackson Howell.) 
Q. I see ; and where is that located 1 

A. 1000 South Brand, Glendale. 

Q. Now, Mr. Howell, just for the purposes of 
later testimony [18] in the case, can you describe 
the plant for us at the Howell Chevrolet Company 
—what it includes ? Can you tell us the location of 
the various departments ? I believe you have a new 
car sales room and you have a service room, et 
cetera. 

A. We have a new car sales room, a parts de- 
partment, a service department, lubrication depart- 
ment, body shop, all adjacent to 1000 South Brand. 

Q. I see. That covers about a half a block, does 
it not, of that area ? 

A. It is about a half a block. 

Q. And do you also have used car lots? 

A. Yes. 

Q. And are they located immediately adjacent 
or are they somewhere else on the street f 

A. No. One of them is at 919 South Brand. 

Q. I see. What is that? Diagonally across from 
your main plant there ? 

A. It is across the street and north. 

Q. And do you have any others ? 

A. Then we have another lot at 1100 South 
Brand. 

Q. Another used car lot f 

A. Used car lot. 

Q. Now, these various departments of the How- 
ell Chevrolet Company — are they divided into de- 



90 National Labor Relations Board 

(Testimony of Jackson Howell.) 
partments I Do you have a foreman or do you liavi 
a service manager? Can you tell me how [19] tha 
works ! 

A. Yes. We operate with a sales manager o 
new cars, a parts manager in charge of the pari 
department, a service manager in charge of tb 
service department with a body shop foreman un 
der his jurisdiction, and a used car manager. 

Q. I see. Now, what jurisdiction does the serv- 
ice manager have? Is he in charge of servicing o 
new cars and used cars or just new cars? 

A. He is in charge of the servicing of new cars 
servicing the customer cars. [20] 



Q. (By Mr. Nutter): Now, Mr. Howell, yoi 
said previously you had a service manager. Wha 
is his name 1 A. Bordeau. 

Q. And you said you had a body shop foreman 

A. That is right. 

Q. And what is his name ? A. Pope. 

Q. And is he a new man? A. Pope, yes. 

Q. And was there a man previous to him? 

A. Yes, Frank Hogan. 

Trial Examiner Myers: What is Mr. Pope' 
first name? 

The Witness : 1 .auren. 

Trial Examiner Myers: And what is the othe 
gentleman's firri name— Bordeau'a I 

The Witness: Vvvd. 



vs. Hotvell Chevrolet Co., etc. 91 

(Testimony of Jackson Howell.) 

Q. (By Mr. Nutter): Was Frank Ogen the 
body shop foreman in February and March of 
1950 ? A. I believe he was. 

Q. Now, during the year 1949, Mr. Howell, did 
you ship any Chevrolet motor cars or trucks directly 
outside the State of California? 
A. Not to my knowledge. [23] 
Q. During the year 1950 did you ship any Chev- 
rolet motor cars or trucks directly outside the State 
of California? A. Not to my knowledge. 

Trial Examiner Myers: When you say shipped 
you mean sold and shipped? 
Mr. Nutter: Sold. 

Q. (By Mr. Nutter) : Did you sell any to any 
customers in Nevada or Arizona or outside the State 
of California during the year 1949 ? 
A. I don't believe so. 
Q. How about the year 1950 ? 
A. I don't believe we did. 

Trial Examiner Myers: During those years did 
you sell and ship to anybody located outside the 
State of California? I mean any automobiles or 
trucks. 

The Witness: No. [24] 

* * * 

(The documents heretofore marked General 
Counsel's Exhibits Nos. 6 and 7 for identifica- 
tion were received in evidence.) [26] 



92 National Labor Relations Board 

GENERAL COUNSEL'S EXHIBIT No. 6 

MAdison 9-1411 
October 6, 1950 

Henry M. Hogan, General Counsel, 

General Motors Corporation, 

3044 West Grand Boulevard, 

Detroit, Michigan. 

Re: Howell Chevrolet Co. and Internationa 
Association of Machinists, District 
Lodge #727 
Case No. 21-CA-794 

Harbor Chevrolet Co. and/or Harbo: 
Realty and Finance Co. and/or Harbo: 
Chevrolet Corp. and International Asso 
ciation of Machinists 
Case No. 21-CA-795 

Dear Sir: 

Please be advised that a hearing will be held ii 
the above cases at 111 West Seventh Street, Loi 
Angeles, California, on October 31, 1950, at !():()( 
a.m. One of the subjects under investigation at fhii 
hearing will be the extent and nature of the oper- 
ations of the above Companies in connection witl 
their dealership in Chevrolet products. 

In the past, counsel For the Company, Frederick 
A. Potruch, has been unwilling to Furnish this office 
with information concerning the extent of oper- 
ations of above companies. I am further informed 
thai the desired information is qoI obtainable al th< 



vs. Howell Chevrolet Co., etc. 93 

Van Nuys plant but is available in the General Ac- 
counting Office, General Motors Corporation, De- 
troit, Michigan. 

It is my thought that if this information is fur- 
nished to me in the form of a letter from your office, 
all parties may be willing to stipulate as to the ac- 
curacy of the facts supplied by you and it will not 
be necessary to require the attendance of your 
officials by subpena. In this way the inconvenience 
and cost of obtaining direct testimony on this sub- 
ject may be avoided. Needless to say, the informa- 
tion which you supply will be used solely as evi- 
dence in the above cases only. 

I have attached a list of items and questions, 
answers to which will satisfy our needs. Since the 
date of hearing is not far off, I will appreciate your 
early reply. I am aware of the fact that you have 
furnished like information to this office in the past 
and would appreciate answers in as much detail as 
you can give us. 

Thank you for your courtesy and cooperation 
with me in this matter. 

Very truly yours, 

RALPH H. NUTTER, 
Attorney. 
Enclosure : 

Questionnaire 

Air Mail 
Special Delivery 

RHN/sm 



94 National Labor Relations Board 

List of Items and Questions 
Refer to letter dated October 6, 1950 

1. What general type of products are shippe 
to the Van Nuys, California, Fisher Body an 
Chevrolet Divisions, General Motors Corporatior 
by General Motors Corporation from outside Stat 
of California? 

2. Where are these products manufactured an 
from what places are they shipped I 

3. The approximate gross value of such shij 
ments during the past calendar year of fiscal perio( 

4. A statement of : 

a. The general nature of the operatior 
carried on by the above-mentioned Van Nu> 
divisions and other plants, supplying abo\ 
dealers. 

1). What products air shipped from the* 
divisions to the above dealers? Produci 
shipped from other plants of Chevrolet Divisio 
to these dealers. 

c The gioss value of the products i 
shipped to these dealers during the past calei 
dar year or fiscal period. 

d. The gross value of products shipped 1 
Van Nuys, California, plants, Chevrolet Div 
sion of General Motors Corporation, during tl 
past calendar year or fiscal period. The origi 

of such products. 



vs. Howell Chevrolet Co., etc. 95 

e. The approximate gross value of the prod- 
ucts, so shipped directly from outside State of 
California to Howell Chevrolet, Harbor Chevro- 
let Co. and/or Harbor Chevrolet Corp. and/or 
Harbor Realty & Finance Co. during the past 
calendar year or fiscal period. 

f. To whom do the said companies make 
payment for the products shipped to them as 
indicated hereinabove. 

g. With whom do the said companies place 
orders for the said products. 

5. Whether Howell Chevrolet, Harbor Chevrolet 
Co. and/or Harbor Chevrolet Corp. and/or Harbor 
Realty & Finance Co., pursuant to franchise, con- 
tracts or other agreements or licenses, use the facili- 
ties and services of the General Motors Acceptance 
Corporation for the purpose of financing Chevrolet 
products sold by said companies, and if so, the 
nature and extent of such usage. 

6. Whether the above companies contribute to a 
common General Motors advertising fund. 



96 National Labor Relations Board 

General Motors Corporation 
General Motors Building 

3044 West Grand Boulevard 
Detroit 2, Michigan 

October 25, 1950. 

Mr. Ralph H. Nutter, Attorney, 

National Labor Relations Board, 

Twenty-First Region, 

111 West 7th Street, 

Los Angeles 14, California. 

Subject: Howell Chevrolet Co. and Interna 
tional Association of Machinists, 
District Lodge #727— Case No. 
21-CA-794, 

Harbor Chevrolet Co. and/or 
Harbor Realty and Finance Co., 
and/or Harbor Chevrolet Corp. 
and International Association of 
Machinists— Case No. 21-CA-7!)f>. 

Dear Mr. Nutter: 

This is in response to your letter of October < 
1950, in connection with the above-subject cases. 

Hereinafter you will find answers to the questior 
attached to your letter of October (i. The answei 
are submitted in the same order as listed in tl 
attachment to your letter: 

1. Motor Vehicle Production Parts, Servi< 
Parts and Accessories. 



v s. Howell Chevrolet Co., etc. 97 

2. Manufactured and shipped from all parts of 
the United States. 

3. In excess of $5,000,000.00 from October 1, 
1949, to September 30, 1950. 

4. (a) Motor Vehicles are assembled and sold 
from assembly plants, and Service Parts and Ac- 
cessories are sold from warehouses. 

(b) Motor Vehicles, Service Parts and Acces- 
sories. 

(c) From October 1, 1949, to September 30, 
1950— 

Howell Chevrolet— In excess of $1,500,000.00 
but less than $2,000,000.00. 

Harbor Chevrolet Co.— In excess of $500,- 
000.00 but less than $1,000,000.00. 

Harbor Chevrolet Corp.— In excess of $500,- 
000.00 but less than $750,000.00. 

(d) In excess of $5,000,000.00 from October 1, 
1949, to September 30, 1950. Shipped from all parts 
of the United States. 

(e) From October 1, 1949, to September 30, 
1950— 

Howell Chevrolet— In excess of $750.00 but 
less than $1,000.00. 

Harbor Chevrolet Co.— In excess of $1,000.00 
but less than $1,200.00. 

Harbor Chevrolet Corp.— In excess of $500.00 
but less than $750.00. 



98 National Labor Relations Board 

(f) To General Motors Corporation or if pur- 
chases are being financed, to the party who has titli 
to Midi products. 

(g) Motor Vehicles— Chevrolet Motor Division 
General Motors Corporation. 

Parts and Accessories— General Motors Part: 
Division, General Motors Corporation. 

5. Howell Chevrolet, Harbor Chevrolet Co., an< 
Harbor Chevrolet Corp. have used or do use th 
facilities and services of General Motors Acceptanc 
Corporation. The nature and extent of such usag 
can be ascertained from the named companies. 

With reference to the request set forth in you 
Letter of October 18, 1950, for copies of the Direc 
Dealer Selling Agreements between Chevrolet an 
the Howell and Harbor companies, we suggest tha 
you arrange with the dealers to have the original 
which have been submitted to you photostated i 
order that the latter may be offered in evidence i 
lieu of the originate. 

Very truly yours, 

/s/ HENRY M. HOGAN, 

General Counsel. 

HSB/mj 

,-,•: K. A. Potruch 

Admitted October 31, L950. 



vs. Howell Chevrolet Co., etc. 99 

GENERAL COUNSEL'S EXHIBIT No. 7 

Telegram 

Official Business — Government Rates 

From 

Bureau 

Chg. Appropriation 

ja 

October 31, 1950. 
Ralph H. Nutter, 
Attorney, 21st Region, 
NLRB, Los Angeles, Calif. 

Regarding Howell Chevrolet Company, Case No. 
21-CA-794, the Following Information Is Furnished 
Pursuant to the Telephone Discussion Which You 
Had With Benjamin of My Staff on October 30 and 
in Response to Your Teletype of the Same Date. 
The Information Has Been Prepared on a Basis 
Comparable to That Used in Furnishing the Board 
With Similar Information in 1948 for the High- 
land Park Chevrolet Company, Case No. 21-RC- 
555. For the Period From October 1, 1949, to Sep- 
tember 30, 1950, Inclusive, Approximately 57 Per 
Cent of the Components of Chevrolet Motor Ve- 
hicles Assembled by the Chevrolet Motor Division 
at Its Van Nuys, California, Plant Were Pur- 
chased From Within the State of California. For 
the Same Period, the Remaining Approximately 43 
Per Cent of the Components of Chevrolet Motor 
Vehicles Assembled by the Chevrolet Motor Division 
at Its Van Nuys, California, Plant Came From 
Sources Outside of the State of California. In Con- 



100 National Labor Relations Board 

nection With Question 6 in the List of Question 
Attached to Your Letter of October 6, Please B 
Advised That the Company Therein Referred to Di 
Not or Do Not Make Contributions to a Commo 
General Motors Advertising Fund but Did or 11 
Make Contributions to a Local Dealer Advertisin 
Fund Which Is Used for Local Purposes. It Is Ov 
Understanding That by Furnishing the Foregoin 
Information It Will Not Be Necessary for tl 
Subpoenaed Van Nuys General Motors Represent; 
tive to Appear. For Your Information, a Copy < 
This Message Is Being Sent to Mr. Potruch Wl 
Represents Howell Chevrolet. 

HENRY M. HOGAN. 

Admitted October 31, 1950. 

* * * 

Mr. Nicoson: Prior to recalling of the mtnes 
if your Honor please, I am informed by Mr. Nutt< 
that he has concluded his proof on the question i 
commerce. We therefore wish to make a motion 
this time to dismiss the entire case on the groui 
that there is no evidence before your Honor 
prove jurisdiction within the recent decisions of tl 
National Labor Relations Board. And I would lil 
also your Honor's permission to argue this a litt 

at Length. [27] 

* * * 

Trial Examiner Myers: Well, I will still r 
serve decision on Hie motion to dismiss. 1 thii 

We OUghl to proceed with the issues involved. [3' 



vs. Howell Chevrolet Co., etc. 101 

(The document heretofore marked General 
Counsel's Exhibit No. 8 for identification was 
received in evidence.) [40] 

GENERAL COUNSEL'S EXHIBIT No. 8 

Howell Chevrolet Co. 

Payroll, Feb. 1, 1950— Mechanics, Painters, etc. 

Herbert Hinz Parts Man 

Wm. Nevins Parts Man 

Harley Barnum Mechanic 

Ralph Beaty Mechanic 

Henry Gibelman Mechanic 

Iver Hopperstad Mechanic 

Lawrence Malstrom Mechanic 

Claud Leonard Mechanic 

Wm. Schoene Mechanic 

Joseph Price Mechanic 

Joseph Sciolora Mechanic 

Wm. Blakeley Mechanic 

Dolye Christian Mechanic 

Lee Fitzhugh Mechanic 

Kenneth Herrick Mechanic 

George Kirkland Mechanic 

Philip Caballero Painter 

Rudyard Cole Trim Man 

Philip Molen Trim Mau 

Prank Ogan Body Man 

Paul Arnold Body Mail 

Ed Dal 7 Body Man 

Joseph Rose Body Man 

Jowland Bordeau Lube Man 



102 National Labor Relations Board 

Robert Reeve Lube M; 

Malvin Paschal Lot B 

Boyce Skelton Delivery B 

Richard Wells Car Wash 

Edward Anthony Service Write Up M; 

Admitted October 31, 1950. 

* * * 

(The documents heretofore marked Genei 
Counsel's Exhibit No. 9 for identification \vc 
received in evidence.) 

* * * 

CLAUDE LEONARD 

a witness called by and on behalf of the Gene] 
Counsel, being first duly sworn, was examined a: 

testified as follows : 

* * * 

Direct Examination 
By Mr. Nutter: 

Q. Mr. Leonard, what is your occupation If 

A. Auto mechanic. 

Q. And how long have you been an auto n 
chanic 1 A. About 25 years. 

Trial Examiner Myers: For the past 25 yeai 

The Witness: For the past 25 years. 

Q. (By Mr. Nutter) : Will you briefly rela 
Mr. Leonard, [41] your experience as an ai 
mechanic I 

A. Well, all-around mechanic, in any— mos 



vs. Howell Chevrolet Co., etc. 103 

(Testimony of Claude Leonard.) 

Chevrolet automobiles, and I can do anything on 

any of those. 

Q. When did you first start out as an auto 
mechanic? Where was it? 

A. St. Louis, Missouri. 

Q. And what were your duties there ? 

A. Mechanic. 

Q. In a garage there? 

A. I was a mechanic for several years there. 

Q. And what were your duties there? 

A. Well, just all-around mechanic — brakes, 
front end, line mechanic, that is working on the 
motors, line mechanic. 

Q. What are the duties of a line mechanic? 

A. Well, that is work on motors, transmissions, 
rear ends, grinding valves. 

Q. Did you say you worked on brakes, also? 

A. Brakes. 

Q. And did you also do any alignment? 

A. Front end work. 

Q. I see; and what did that consist of? 

A. Well, lining up the front end, kingpins, pivot 
pins, upper and lower pivot pins. 

Q. And did you tell us where you were first 
employed? Did you say it was St. Louis? [42] 
A. St. Louis. 

Q. And you were employed in an agency garage 
here — or what was it? 

A. I worked five years for an independent. He 
ised to be with General Motors. He specialized with 
^hevrolets. 



104 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. Then what did you do after that I 

A. Well, I had my own shop for three years. 

Q. Had your own shop in St. Louis? 

A. It was about six miles from the city limil 
on Highway 61. 

Q. And what kind of repair did you do at yoi 
own shop 1 A. All kinds. 

Q. All kinds? 

A. That I could handle. I didn't handle b 
things, just a small size shop. 

Q. I see. Now, did you subsequently move 
California'? A. Yes. 

Q. And how long ago was that ! 

A. Eight years ago. 

Q. Now, have you been employed as an an 
mechanic in California? A. Yes, sir. 

Trial Examiner Myers: Well what happen 
in the meantime ? You only told us about eig 
years in St. Louis and eight years here. That 

16. [43] 

The Witness: Well, 1 had worked for auton 
bile companies there. You know, doing the— y 

mean I'mm the time— well, I had my own sh< 
When I gave that up I came out here. 

Trial Examiner Myers: You had your own sh 
starting around 1939 to 1940? 

The Witness: Yes; longer than that. 

Trial Examiner Myers: What? I think th< 
date8— Wh^n did yon give Up your shop in i 
Louis I 



vs. Howell Chevrolet Co., etc. 105 

(Testimony of Claude Leonard.) 

The Witness : '41. 

Trial Examiner Myers : And you came out here ? 

The Witness : Yes. 

Trial Examiner Myers : You have been here ever 
since ? 

The Witness : Yes. 

Trial Examiner Myers: What did you do then? 
In 1941 you gave up your shop and you had it for 
three years. That takes us back to 1938. Is that 
right? 

The Witness : Yes, '38. 

Trial Examiner Myers : What did you do ? You 
worked five years for this independent man ? 

The Witness : That is right. 

Trial Examiner Myers: That takes us back to 
about 1933? 

The Witness : You want to know where I worked 
before that? 

Trial Examiner Myers : Yes, where were you be- 
fore 1933 ? Or, if you would rather put it the other 
way, it is all right with me, that is, from 1925 
on. [44] 

Q. (By Mr. Nutter) : If you have been a me- 
chanic since 1925, what did you do in the years be- 
tween 1925 and 1933? Do you recall that? Did you 
work as an auto mechanic ? 

A. Yes. I was trying to figure when I left there. 
In 1927 I worked for Southside Chevrolet. 

Trial Examiner Myers : As what ? 

The Witness: Mechanic. 



1 06 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. (By Mr. Nutter) : How long did you wori 
for Southside Chevrolet? 

A. I didn't work there too long— probably abou 
a year. 

Q. And then did you work for any other garage 
or dealers between 1927 and 1933 ? 
A. I had one independent shop for three years 
Q. Can you recollect what years those were 
A. 1929 to 1933— Ben's Auto Repair. 
Trial Examiner Myers: Was that in St. Louis 
The Witness : That was in St. Louis. 
Q. (By Mr. Nutter) : Now, can you reeal 
where you worked between 1925 and 1927 ? 
A. '25 and '27? 

Q. Yes. Well, if you just cannot recollect 

A. Then I was trying to figure the dates, 
worked for my uncle in a service station and repai 
shop. That was about 1926; worked for him abou 
two years. No, about 1925 it was, the same year 
got married. That ought to be easy to [45] remerr 

ber. 

Q. That just about covers it. Now, when yo 
came to California, what did you do when you cam 
to California? 

A. Well, the first job 1 got was with a Chevrok 
dealer, Pollaid-Ravenscroft in Van Nuys. 

Q. Mow Long did you work for them? 

A. From March until July, r believe it was. 

Trial Examiner Myers: En what year was that 

The Witness: In L943, 1 guesa 



vs. Howell Chevrolet Co., etc. 107 

(Testimony of Claude Leonard.) 

Q. (By Mr. Nutter) : Did you work for any 
other companies? 

A. From there I went to Howell Chevrolet in 
Glendale. 

Q. When did you work at Howell? 

A. How long? 

Q. Yes. A. A little over a year. 

Q. When did you start to work at Howell ? 

A. Well, it was in June, I believe. 

Q. Of what year ? 

A. Must have been 1944, '44 I believe. 

Q. And what were your duties at Howell Chev- 
rolet? A. Lineman. 

Q. Lineman? A. Line mechanic. 

Q. And what did you do as a line mechanic ? 

A. Oh, worked motors, and part of the time 
whatever you was given to do, why, you done. You 
know, if you were able to do [46] it. 

Q. Well, could you tell us the kind of work you 
lid? 

A. Well, overhauling motors, transmissions, rear 
>nds, relining brakes. 
Q. Anything else? 

A. Occasionally we done front end work on the 
ine. 

Q. How long did you work at Howell starting in 
^une of 1944? 

A. A little over a year I believe it was. That is 
he best of my knowledge. I don't know just exactly 
he date I left there. 



108 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. And then what did you do? 

A. I went with an independent shop. He used 
to be general manager at Howell's Chevrolet. He 
opened up his own business. 

Trial Examiner Myers : What is his name 1 

The Witness: William Reilly. 

Trial Examiner Myers : Where was he located j 

The Witness : Broadway and Louise in Glendale. 

Q. (By Mr. Nutter) : Do I understand that this 
general manager of service at Howell opened up his 
own shop and you went with him to work with him, 
is that right ? A. Yes, sir. 

Q. And how long did you work with him ? 

A. A little over two years. 

Q. And how did you happen to leave his em- 
ployment? 

A. Well, I got a better job— I thought I did, 

anyway. [47] 

Q. Where was that? 

A. Martin Pollard Chevrolet. 

Trial Examiner Myers : Whereabouts ? 

The Witness: In North Hollywood. 

Q. (By Mr. Nutter): Now, when you worked 
for William Reilly in Glendale what were your 
duties'? A. I was doing everything there. 

Q. Well, will you tell us what you were doing A 

A. Motor work, transmission, rear ends, tune 
U]K brakes, front end— no body work. 

Q, And what were your duties at Martin Pollard 
Chevrolet I A. 1 was on the line there. 



vs. Howell Chevrolet Co., etc. 109 

(Testimony of Claude Leonard.) 

Q. And what were your duties on the line ? 

A. Motors, transmissions, rear ends, valves. 

Q. Anything else? 

A. That is all over there. 

Q. And did you leave Martin Pollard I 

A. Yes, sir. 

Q. When did you leave them ! 

A. In January of 1948. 

Q. And where did you go i 

A. Back to Howell Chevrolet. 

Q. And what were your duties at the Howell 
Chevrolet ? 

A. I went to work there as a brakeman. 

Q. And what were your duties as a [48] brake- 
man? 

A. Eeline brakes, overhaul wheel cylinders and 
master cylinders or anything pertaining to the brak- 
ing system. 

Q. Did you do any other work at the Howell 
Chevrolet besides the brake work and cylinder 
work? A. Yes, sir. 

Q. What was it? 

A. Oh, they had a front end man there that he 
wasn't on the job all the time— you know, he was 
off, sickly. So I taken his place different times— 
also when he was on his vacation. 

Q. What was that man's name? 

A. Al Crowley. 

Q. And when was that that you did some of this 
alignment work ? 



110 Natiotial Labor Relations Board 

(Testimony of Claude Leonard.) 

A. June in 1949. I think A] left there when he 
came back off his vacation. That must have been 
around in August. 

Q. August, 1949? 

A. I am not sure now, because I don't know 
when he took his vacation. All I know is what I 

did. 

Q. Then how long did you work at Howell after 
that? A. Until March 31, 1950. 

Q. March 31, 1950? What happened on that 
date ? A.I was laid off. 

Q. I see. Now, while you were employed at the 
Howell Chevrolet did you take any courses given in 
mechanics, on operations, or anything of that [49] 
sort 1 

A. We take examinations once a year. 

Q. What kind of an examination is that ? 

A. Well, they call it a General Motors examina- 
tion. They issue you a diploma. 

(Thereupon the document above referred to 
was marked General Counsel's Exhibit No. 10 
for identification.) 

Q. (By Mr. Nutter) : 1 show you a document, 
Mr. Leonard, that I have had marked as Genera] 
Counsel's Exhibit No. 10, and ask you if you could 
tell me what that is. 

A. That is your diploma thai you gel after you 
l>;iss the examination. 

Q. What examination is that > 



vs. Howell Chevrolet Co., etc. Ill 

(Testimony of Claude Leonard.) 

A. Well, it is a list of questions that are asked 
you and you answer them and you have to pass a 
grade of 70 or better. 
Q. Where did you take this examination ? 
A. This examination was taken at the Glendale 
Hotel. 



Q. (By Mr. Nutter): You took this examina- 
tion when ? [50] 

A. You usually take them around in April or 
June. There is no certain time. 

Q. When did you take the examination for this 
certificate? A. That? I don't know the date. 

Q. I mean approximately. 

A. Approximately around April. 

Trial Examiner Myers : Of what year ? 

Q. (By Mr. Nutter) : April of what year f 

A. 1950. 

Q. 1950. Now, I notice that on the certificate 
aere it says the ninth year. A. That is right. 

Q. Can you tell me what that is % 

A. Then '49 was my eighth year, '48 was my 
seventh year. 

Q. Do I understand that you have taken nine 
uch examinations? 
A. Nine consecutive examinations. 



Q. (By Mr. Nutter) : Now, when you were em- 



112 National Labor Relations Board 

(Testimony of Claude Leonard.) 

ployed at the Howell Chevrolet did you take such 

an examination for the eighth year? 

A. Yes, sir. [51] 

Q. And where did you take such an examina- 
tion? 

A. It was taken on Washington Avenue. 

Q. In what city? 

A. Here in Los Angeles. 

Q. Did you take that 

A. Roger Young Auditorium. 

Q. And that is while you were employed at 
Howell Chevrolet? A. That is right. 

Q. And did you get that certificate 

Trial Examiner Myers : You mean the first time 
or the second time ? 

The Witness : In '48— the eighth time. 

Q. (By Mr. Nutter) : And did you receive a 
certificate for that examination when you worked 
for Howell Chevrolet? A. That is right. 

Q. The eighth year you took it? 

A. The eighth year. 

Q. Was it similar to this one ? 

A. Just like this, only it got 1949 where this 

says 1950. 

Q. How did you happen to take that examina- 
tion while you worked at Howell I 

A. Well, they asked me to go down and take 

them. 

Q. Who asked I A. The boss. [52] 



vs. Howell Chevrolet Co., etc. 113 

(Testimony of Claude Leonard.) 

Q. When you work on the line do you post such 
a certificate above your stall ? 

A. Some do and some don't. 

Trial Examiner Wyers : Did you ? 

The Witness: No. 

Q. (By Mr. Nutter) : And is it your testimony 
that you have taken nine such examinations and 
received certificates showing that you are a Chev- 
rolet approved mechanic? Is that correct? 

A. That is right. 



(The document heretofore marked General 
Counsel's Exhibit No. 10 for identification was 
received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No. 10 

Chevrolet Approved Mechanic 
1950 

To all to whom these presents shall come: Greetings 

Be it known that 
Claude Leonard 
has completed the Course of Training as prescribed 
by the Chevrolet Motor Division, General Motors 
Corporation, for those engaged in Performing Serv- 
ce Operations on Chevrolet Motor Cars and 
rrucks. This Certificate has been issued as an 
iward of Merit for having successfully completed 
;his course of instruction. 



114 National Labor Relation* Board 

(Testimony of Claude Leonard.) 
In testimony whereof I hereby affix my signature. 

/s/ E. L. BARRIG, 

Manager Service and 

Mechanical Department. 

SUPER CHEVROLET 
SERVICE. 

NATIONAL LABOR 
RELATIONS BOARD. 
Ninth Year. 

Received in evidence October 31, 1950. 



Q. (By Mr. Nutter) : Now, Mr. Leonard, while 
you were employed at the Howell Chevrolet did you 
join any union ? A. Yes, sir. [53] 

Q. What union was that? 

A. International Association of Machinists. 

Q. And can you tell us when you joined the 
union ? 

A. About January 23rd, I believe, of 1950. 

Q. I see. Now, did you hold any kind of an 
office in the union? 



vs. Howell Chevrolet Co., etc. 115 

(Testimony of Claude Leonard.) 

A. I was shop steward, senior chairman. 

Q. And how did you happen to be senior chair- 
man? 

A. By vote of the employees at Howell Chev- 
rolet. 

Q. And when was that vote taken ? 

A. I believe that was on January 30th, as well 
as I remember. 

Q. And you say that you — well, did you attend 
a meeting of Howell employees on January 30, 
1950? A. That is right. 

Q. And where was that meeting held ? 

A. That is the Local Hall in Van Nuys. 

Q. Local Hall of the IAM j 

A. That is right. 

Q. Can you tell us who was present at that 
meeting ? 

A. Well, I could tell you a few from Howell 
Chevrolet. 

Q. Yes, that is what I want. 

A. There was George Kirkland, Lee Pitzhugh, 
Bill Barnum. 

Q. Anybody else that you recall ? 

A. That is all I can think of — and myself — that 
is all I can think of right now. [54] 

Q. Were there any other Howell employees 
there f A. At that meeting ? 

Q. Were there any you cannot remember? Do 
you recall if there were others there ? 

Trial Examiner Myers: If you thought there 



116 National Labor Relations Board 

(Testimony of Claude Leonard.) 

were others present, though you do not remember 

their names. 

The Witness: Yes, there were some more there, 
though I cannot recall their names. 

Trial Examiner Myers: About how many more? 

The Witness : About four. 

Trial Examiner Myers : That makes about seven 
of you being present? 

The Witness : About eight of us there. 

Trial Examiner Myers: Eight? 

The Witness : Yes. 



Q. (By Mr. Nutter) : Now, I have had marked 
for identification General Counsel's Exhibit No. 11, 
an authorization card. I will show you that and ask 
you to tell me what that is. 

A. It is an authorization card from the Labor 
Board to hold an election. 

Q. I will ask you if you can identify it. Notice 
there is a signature there. Can you tell me whoso 
signature that is I A. Lee Fitzhugh's. [55] 

Q. dan you tell me whether you saw that signa- 
ture made at this meeting you referred to f 

A. Yes, I saw him signing the card. 

Q. Can you tell us the circumstances about how 
the card was signed I 

A. Well, he just filled it out 

O. The cardfl were passed out and you fellows 

filled them nut I is that it I 



vs. Howell Chevrolet Co., etc. 117 

(Testimony of Claude Leonard.) 

A. The cards were passed out. 

Q. And were you present when this one was 
filled out? A. I was. 

Q. This was at the meeting at the IAM hall? 

A. Yes. 

Q. And you recognize his signature ? 

A. Yes. [56] 

* * * 

(The document heretofore marked General 
Counsel's Exhibit No. 11 for identification was 
received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No. 11 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No 

Home Address— St. : 1610 W. Glenoaks. 
City : Glendale. 
Tel. No.: CI 3783. 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power or 



118 National Labor Relations Board 

(Testimony of Claude Leonard.) 
authority heretofore given to any person or organi- 
zation to represent me. 

This does not obligate me financially in any way. 

Date: Jan. 30, 1950. 

/s/ LEE E. PITZHUGH. 

(Signature of Employee.) 

LEE E. FITZHUGH. 

(Please Print Name.) 

Admitted October 31, 1950. 



Q. (By Mr. Nutter) : Now, I have had marked 
for identification a card, an authorization card, as 
General Counsel's Exhibit No. 12. I show you this 
card here with a signature, H. William Barnum. 
Do you recall that ? A. Yes, sir. 

Q. When was that signed ? 

A. That was signed at the hall the night of the 
meeting. 

Q. At the IAM hall ? A. IAM hall. 

Q. That was signed January 30th, was it? 

A. That is right. [57] 



Q. And tell us the circumstances. Were you 
present when 

A. I was. The cards were passed out and Wil- 
liam Barnum signed it. 

Q. And where were you when it was signed? 



vs. Howell Chevrolet Co., etc. 119 

(Testimony of Claude Leonard.) 

A. Right there with them. 

Q. With whom? 

A. Barnum, Lee Fitzhugh. 

Q. And did you see Barnum sign the card? 

A. Yes, sir. [58] 

* * ■* 

(The document heretofore marked General 
Counsel's Exhibit No. 12 for identification was 
received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No 12 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No 

Home Address — St. : 3345 1 /*> Sunnynook Dr. 
City: Los Angeles, 39. 
Tel No. : 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power or 
authority heretofore given to any person or organi- 
zation to represent me. 



120 National Labor Relations Board 

(Testimony of Claude Leonard.) 
This does not obligate me financially in any way. 

Date: Jan. 30, 1950. 

/s/ WILLIAM BARNUM. 

(Signature of Employee.) 

H. WILLIAM BARNUM. 

(Please Print Name.) 

Admitted October 31, 1950. 



Q. (By Mr. Nutter) : Now, did you go to work 
the next day at Howell Chevrolet ? 

A. Yes, sir. 

Q. Did you wear any union button % 

A. Yes, sir. 

Trial Examiner Myers : I AM button ? 

The Witness: IAM button. 

Q. (By Mr. Nutter) : What does it say on the 
button? 

A. Just International Association of Machinists. 

Q. Is that all it contains? A. 727. 

Q. 727 ? What does that refer to ! [59] 

A. That is District Local 727. 

Q. Was there anything else on the button ? 

A. No ; on the one I wore. On the 

Trial Examiner Myers: Well, we are only ask- 
ing you about the one you wore. 

Q. (By Mr. Nutter) : Yes, the one you wore. 
, A. The one I wore. 



vs. Howell Chevrolet Co., etc. 121 

(Testimony of Claude Leonard.) 

Q. Yes. A. " Senior Chairman," IAM. 

Q. Well then, did other people wear buttons in 
the shop, too ? A. Yes, sir. 

Q. Who else wore buttons'? 

A. Well, the next day there was Fitzhugh, Bar- 
num and Kirkland, and there were a few more 
signed up that morning. They started wearing but- 
tons, too, — Philip Caballero and Kenny Herrick. 



Q. (By Mr. Nutter) : Now, I will show you a 
card that I have had marked as General Counsel's 
No. 13, and ask you if you recognize that. 

A. Yes, sir. 

Q. Can you tell us about that? 

A. Well, that is Richard Wells. He signed that 
in the morning of the 31st ; that was at the meeting. 

Q. And could you tell us the circumstances, the 
time and [60] place and who were present ? 

A. Right there in his car. 

Q. In his car? A. Yes. 

Q. I mean, was he seated in his car ? 

A. Yes. 

Q. What time of day was that? 

A. In the morning, around 7 :30, 7 :45. 

Trial Examiner Myers: Where was the car lo- 
cated ? 

The Witness: Parked at the side of Howell 
Chevrolet. 

Q. (By Mr. Nutter) : Well, did you give him 
the card ? A. Yes, sir. 



122 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. Oh, you gave him the card? Now, will you 
tell us what happened from start to finish % 

A. I gave him the card and asked him if he 
wanted to sign up; he knew what was going on 
there, and I 

Mr. Nicoson: I object to what he knew. 

Trial Examiner Myers : Yes, strike it out. 

The Witness : He said that he would sign it and 
so he signed it up there and I give it to him to sign. 

Mr. Nicoson: Move to strike what he repeated 
as Wells having said on the grounds that it is hear- 
say. 

Trial Examiner Myers : Strike it out. You gave 
him the card and he signed it ? Is that right 1 

The Witness : That is right. [61] 



(The document heretofore marked General 
Counsel's Exhibit No. 13 for identification was 
received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No. 13 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No 

Home Address — St.: 1404 Basilone. 
City: Sun Valley. 

Tel. No.: 

hereby authorize the International Association of 



vs. Howell Chevrolet Co., etc. 123 

(Testimony of Claude Leonard.) 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power or 
authority heretofore given to any person or organi- 
zation to represent me. 

This does not obligate me financially in any way. 

Date: Jan. 31, 1950. 

/s/ RICHARD A. WELLS. 

(Signature of Employee.) 

RICHARD A. WELLS. 

(Please Print Name.) 

Admitted October 31, 1950. 



Q. (By Mr. Nutter) : I have had marked for 
identification a card as General Counsel's Exhibit 
No. 14. I show this to you, Mr. Leonard, and ask 
you if you can identify that. A. Yes, sir. 

Q. And what is that ? 

A. That was Ralph Beaty. He worked on used 
cars. 

Q. Now, will you tell us the time, place and cir- 
cumstances of the signing of the card ? [62] 

A. Yes. I give Ralph the card and he signed it 
while I waited for it right there. 



124 National Labor Relations Board 

(Testimony of Claude Leonard.) 
Q. What time was this I 
A. In the morning. 

Q. Was this during work or before work? 
A. Before work. 
Q. About what time ? 

A. Oh, around a quarter to eight. [63] 

* ■* * 

(The document heretofore marked General 
Counsel's Exhibit No. 14 for identification was 
received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No. 14 

Authorization for Eepresentation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept No , Clock 

No , Shift No , Plant No 

Home Address — St. : 725% E. Acacia. 
City : Glendale. 
Tel. No. : CI 20754. 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 



vs. Hoivell Chevrolet Co., etc. 125 

(Testimony of Claude Leonard.) 
This does not obligate me financially in any way. 

Date: Jan. 31, 1949. 

/s/ EALPH BEATY. 

(Signature of Employee.) 

EALPH BEATY. 

(Please Print Name.) 

Admitted October 31, 1950. 



Trial Examiner Myers: When were these cards 
signed — Barnum's and this No. 14? 

The Witness: Barnum's was signed on January 
30th, and the [64] other two were signed the next 
day, January 31st. That was the day after the 

meeting. 

•* # * 

Q. (By Mr. Nutter) : I have had marked for 
identification a card, General Counsel's No. 15. I 
show you this, Mr. Leonard, and ask you if you can 
identify it and tell us any circumstances about it % 

A. Yes. That is another used car mechanic. I 
left this card with him in the morning. He brought 
it over to me at — well, I don't know just what time, 
but it was before 10:00 — signed. I didn't see him 
sign it. 

Q. You left the card with him when? 

A. In the morning. 

Q. What time, what morning 1 ? 

A. The morning of the 31st, when I saw Beaty. 

Q. Did you give him that card before work ? 



126 National Labor Relations Board 

(Testimony of Claude Leonard.) 

A. Yes, sir. 

Q. And what did you say to him when you gave 
it to him ? 

A. Well, I told him I had a card for him to sign. 

Q. And did he take it? A. Yes, sir. 

Q. What did he say to you ? 

A. He said he would sign it and bring it over. 

Q. And then you say he brought it over to 
you? [65] 

A. He brought it over sometime before 10:00 
o'clock. 

Trial Examiner Myers : That same morning ? 

The Witness : That same morning. 

Q. (By Mr. Nutter) : He brought it over to 
you at your place of work, is that it ? 

A. Yes, sir. 

# •* # 

The Witness: He brought over the card and it 
was signed. I didn't see him sign it. He didn't sign 
it in my presence. 

Q. (By Mr. Nutter) : Did he say anything to 
you when he handed it to you ? A. No. 

Mr. Nutter: I now offer General Counsel's Ex- 
hibit No. 15 in evidence. 

Trial Examiner Myers : Any objection ? 

Mr. Skagen: No objection. 

Mr. Nicoson: Objected to as no proper founda- 
tion. 

Trial Examiner Myers: I will overrule the ob- 
jection, and receive the card in evidence; and I will 
ask the reporter to J [66~] please mark it as General 
Counsel's Exhibit No. 15. 



vs. Howell Chevrolet Co,, etc. 127 

(Testimony of Claude Leonard.) 

(The document heretofore marked General 
Counsel's Exhibit No. 15 for identification was 
received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No. 15 
Authorization for Representation under the 
National Labor Relations Act 
I, the undersigned, employee of Howell Chev. Co., 

employed at , Dept. No , Clock No , 

Shift No , Plant No 

Home Address — St.: 1849 San Fernando, R. D. 
City: .... 

Tel. No 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 
Date: Jan. 31, 1950. 

/s/ JOE SCIOLORO. 

(Signature of Employee.) 
JOE SCIOLORO. 

(Please Print Name.) 
Admitted October 31, 1950. 



128 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. (By Mr. Nutter) : I have now marked for 
identification a card, General Counsel's Exhibit No. 
16. I show you the card, Mr. Leonard, and ask you 
if you can identify that % 

A. That is another used car mechanic. I think 
he was supposed to be the head mechanic over there 
— Larry Malstrom. I give him this card the same 
time I give it to Joe. And 

Trial Examiner Myers : On what date % 

The Witness : On the 31st of January, 1950. 

Q. (By Mr. Nutter) : You mean that was in 
the morning'? 

A. In the morning, same time I give Joe the 
card. 

Q. You mean the previous card that you gave, 
General Counsel's 15? 

A. Yes, sir. And he said he would sign it, and 
bring it over. 

Mr. Nicoson: Objected to — what he said — and 
move to strike it on the ground of hearsay. 

Trial Examiner Myers : I will strike that. 

Q. (By Mr. Nutter) : He brought it over to 
you signed? A. Yes, sir. 

Q. And when was that ? [67] 

A. Before 10:00 o'clock. 

Trial Examiner Myers: The same morning? 

The Witness : Same morning. 

Mr. Nutter: I now offer General Counsel's Ex- 
hibit No. 15 in evidence. 



vs. Hoivell Chevrolet Co., etc. 129 

(Testimony of Claude Leonard.) 

Trial Examiner Myers: When you say "he," 
whom do you mean ? 

The Witness: Larry Malstrom. 



Mr. Mcoson: Just a moment, please. We object 
to this card going into evidence on the ground of 
no proper foundation being laid. There is no testi- 
mony from this witness that the signature on here 
purports to be, or is in fact any signature placed on 
there by Mr. Malstrom. All the testimony shows is 
that he handed him the card on which there is a 
signature. 

Under those grounds there certainly is no foun- 
dation to show that this is the signature of Mr. 
Malstrom or anyone else for that matter. And we 
will object to it on that ground. 

Trial Examiner Myers : Overruled. [68] 



Mr. Nutter : Do you have in your possession the 
signatures of any of the employees on the pay roll 
list? 

Mr. Nicoson: I think that is immaterial and I 
refuse to answer the question. 



(The document heretofore marked General 
Counsel's Exhibit No. 16 for identification was 
received in evidence.) 



130 National Labor Relations Board 

(Testimony of Claude Leonard.) 

GENERAL COUNSEL'S EXHIBIT No. 16 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at 919 So. Brand, Dept. No , Clock 

No , Shift No , Plant No 

Home Address — St. : 101 E. Doran. 
City : Glendale. 

Tel. No. : 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 

Date: Jan. 31, 1950. 

/s/ L. A. MALSTROM. 

(Signature of Employee.) 

L. A. MALSTROM. 

(Please Print Name.) 

Admitted October 31, 1950. 



vs. Howell Chevrolet Co., etc. 131 

(Testimony of Claude Leonard.) 

Q. (By Mr. Nutter) : Now, Mr. Leonard, you 
worked at the Howell Chevrolet up until March 
31st ? A. That is right. 

Q. And how were you paid ? 

A. A commission. 

Q. On a commission basis'? 

A. Yes, sir — 40 per cent of the flat rate price. 

Q. Forty per cent of the flat rate price of the 
labor % A. That is right. 

Trial Examiner Myers: You mean 40 per cent 
of what was charged the customer % 

The Witness: Yes, 40 per cent of what was 
charged to the [69] customer for labor. 

Q. (By Mr. Nutter) : While you were employed 
at the Howell Chevrolet did you know a man by the 
name of Frank Ogen? A. Yes, sir. 

Q. And who is he ? 

A. Body shop foreman. 

Q. Now, you previously testified that you wore 
an IAM button, a senior chairman button? Is that 
correct? A. That is right. 

Q. Did you have any conversation with Mr. 
Hogan about that button 1 

A. Well, I was out there in the body shop one 
day at noon ; and he told me to get away from him 
with that button on. He didn't want to get fired. 

So I told him there wasn't anybody going to get 
fired over the buttons. 

He said that Mr. Howell told him he was going 
to fire anybody that joined the union. 

Q. And when was this ? 



132 National Labor Relations Board 

(Testimony of Claude Leonard.) 

A. Oh, that was — I don't know the date, but it 
was a week or so after we started wearing our 
buttons. [70] 

*■ # ■* 

Q. Do you know a man by the name of Mr. 
Bordeau out at the plant I 
A. That was my boss. 
Q. He is the service manager? 
A. Service manager. 
Q. Did Mr. Bordeau ever say anything to you 

about the union ? 

* # *■ 

The Witness : Yes. 

Q. (By Mr. Nutter) : And when and where ? 



Trial Examiner Myers: When approximately? 
The Witness: It was around, I would say, the 
last part of February. 

Trial Examiner Myers : 1950 1 
The Witness: 1950. [71] 



Q. (By Mr. Nutter) : Now, you say you talked 
to Mr. Bordeau. Now, where was it ? 

A. Well, I was talking to a body man 

Q. And who was that? 

A. out in the body department. George 

Davis. 

Q. And what happened ! 



vs. Howell Chevrolet Co., etc. 133 

(Testimony of Claude Leonard.) 

A. Well, we were standing there talking and Mr. 
Bordeau was standing 



Q. (By Mr. Nutter) : First, you were present 
with Mr. Davis ? A. Yes, sir. 

Q. And you were in the body shop ? 

A. Body department. 

Q. About what time of day? 

A. It was just before noon. 

Q. And was there anyone else present? [72] 

A. No. 

Q. Was Mr. Bordeau present? 

A. He was standing — oh, about fifty feet away, 
probably. 

Q. And what did Mr. Bordeau say to you ? 

A. Well, he hollered out to me to get away from 
the man and let him alone, not to bother him with 
his work. So he didn't have no job at the time; 
neither did I 

Trial Examiner Myers : Who is " he " ? 

The Witness: Mr. Davis — and he told me to get 
away from the man. 

Trial Examiner Myers : Now, you have got "he" 
in there again. Will you tell us who is "he"? 

The Witness : Mr. Bordeau told me to get away 
from Davis and leave him alone, and that he didn't 
want no union campaigning around there on duty. 

So I walked away from him and walked over to 
Mr. Bordeau and was talking to him and told him 



134 National Labor Relations Board 

(Testimony of Claude Leonard.) 
that I wasn't union campaigning. And he told me 
I was to quit union campaigning around there or 
get out. 

Q. (By Mr. Nutter) : Now, when you were em- 
ployed there, you stated that you worked on a com- 
mission basis. How did that work ? Will you explain 
it to us? 

A. Well, for instance, you had a brake reline 
that would call for ten dollars and a half. That isn't 
the exact figures, but that is the principal — ten and 
one-half labor, you know, [73] to reline the brakes. 
Well, I would get 40 per cent of the ten and a half. 

Q. But when you were not working on a car that 
had been assigned to you, what did you do ? 

A. Nothing ; time was your own. 

Q. Well, by whom were you assigned jobs on 
cars? 

A. By the service manager or service salesman. 

Q. And then you would go to work on the car 
and get credit for labor employed on that car; is 
that right ? A. That is right. [74] 



Q. (By Mr. Nutter) : Mr. Leonard, I show you 
some documents that I have had marked General 
Counsel's 17-A through 17-F. First, I will show 
you General Counsel's 17-A and see if you can iden- 
tify that. Can you tell me what that is ? 

A. That is the stub for your pay check. 

Q. That was received from Howell Chevrolet? 

A. That is right. 



vs. Hoxvell Chevrolet Co., etc. 135 

(Testimony of Claude Leonard.) 

Mr. Nicoson : Objected to as leading. 

Trial Examiner Myers : Overruled. 

The Witness: From 

Mr. Nutter: Pardon ? 

The Witness: From Howell Chevrolet in [75] 
1950. 

* # #• 

(The documents heretofore marked General 
Counsel's Exhibits Nos. 17-A, B, C, D, and E 
for identification were received in evidence.) 



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1OO0 S. BRAND BLVD. — OLENDALE 4, CALIF. 2- 4T*-C- t I V " 



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ed October -1 , 19 to • 



vs. Howell Chevrolet Co., etc. 137 

(Testimony of Claude Leonard.) 

Q. (By Mr. Xutter) : Mr. Leonard, I now show 
you General Counsel's Exhibit 17-F. Tell us if you 
can describe that exhibit. 

A. Well, there is no date on it; but that is the 
only one I could find with no date, and the rest of 
them all showed 1949. So this must be from 1950: 
you know, from January 1st to the 15th. TVe are 
paid every two weeks, the 1st and 15th. 

Q. I see. Now, can you tell us what the date is 
that you received this ! 

A. I would say that this is from the 1st to the 
15th. 

Q. To the 15th of January ! 

A. January, 1950. [77] 



(The document heretofore marked General 
Counsel's Exhibit Xo. 17-F for identification 
was received in evidence.) 

[See Photo Page 136.] 

Q. (By Mr. Xutter) : Xow, Mr. Leonard, I be- 
lieve you previously testified that you were dis- 
charged on March 31 ? A. That is right. 

Q. Can you tell us the time, place and circum- 
stances ? What happened on the date that you were 
discharged ! 

A. It was on Friday at about 6:00, Friday 
around 6:00 o'clock. I worked overtime that night 
on a job I had to get out; and I finished up the 



138 National Labor Relations Board 

(Testimony of Claude Leonard.) 

job, turned in the ticket, and went in to change 

clothes. 

Then Mr. Bordeau and the service manager Ed 
Anthony come in the dressing room and Mr. Bor- 
deau told me that he was going to have to let me 
go that night. And I asked him what was the rea- 
son, and he said there wasn't enough work for one 
man to make a living, so he was going to combine 
the brakes and front end together. 

So I says, "Well, I have had more seniority here 
than the front end man. I can also do the job." 

And he said, "Well, that is the way it is to be," 
and there wasn't nothing he could do about it. 

Trial Examiner Myers: And who is the front 
end man — at [78] that time? 

The Witness: Kenny Herrick. Kenny had been 
there about two months. 

Q. (By Mr. Nutter) : Now, Mr. Leonard, I 
notice that on General Counsel's 17-A, 17-B, 17-C 
and 17-D your earnings appear to be less than they 
were prior to that date. Can you tell us what you 
were working on? You worked on brakes during 
that period ? A. Yes, sir. 

Q. Anything else during that period? 
A. No ; nothing at all, only brakes. 
Q. Well then, did you just hang around? Tell 
us, when you finished a job working on brakes, 
what did you do? 



vs. Howell Chevrolet Co., etc. 139 

(Testimony of Claude Leonard.) 

A. Just waited for someone else to come in with 
a brake job. 

Q. Well, you testified previously that you were 
assigned jobs by the service salesman; is that right? 

A. Service salesman or service manager. 

Q. And if you were not assigned jobs, is it cor- 
rect that you did not work at all ? A. No. 

Q. Were you assigned any type of work by any 
supervisor in the plant*? 

A. Other than brake work? 

Q. Yes. A. No. [79] 

Trial Examiner Myers: Well, when you were 
not working, did you receive any compensation? 

The Witness: No, sir. 

Trial Examiner Myers : Your job was a straight 
commission ? 

The Witness: Straight commission. 

Q. (By Mr. Nutter) : I believe it is your testi- 
mony that you did no other work other than the 
brake work? 

A. No, sir — not during this time here. 

Q. During that period represented by General 
Counsel's 17-A through 17-P? 

A. That is right. 

Q. Did you work in a stall? 

A. Yes, we had different stalls to work in. 
There was a brake department, and then the line 
and the front end department, tune-up stalls, and 
things like that. 



140 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. And I take it that at least while you worked 
there there was a stall assigned for brake work; is 
that correct? A. Yes, sir. 

Q. Was there brake work done at any other 
parts of the plant other than the stall where you 
worked? 

A. There was some brake work done on the lube 
rack; that is, you know, anything pertaining to 
brakes I was supposed to get; and there was some 
of it done out on the lube rack, and there was some 
done on the tune up. 

Q. And when was that work done? Will you 
tell us the time [80] and place ? 

A. A couple of the jobs that were done on the 
lube jobs that I happened to catch them being done 
out there was on March 23 and 24. 

Q. Now, will you tell us the time and place and 
circumstances about them? 

A. Well, they were adjusting brakes. 

Q. Who was? A. The lube men. 



Q. (By Mr. Nutter) : Who were the men who 
worked in the lubrication department? 

A. One of their names was Bordeau; that was 
Chub Bordeau 's son. The other one we called him 
Tiny. I don't recall his last name. 

Q. Whereabouts did those men work in relation 
to your brake stall? 



vs. Howell Chevrolet Co., etc. 141 

(Testimony of Claude Leonard.) 

Trial Examiner Myers: Where did they nor- 
mally work? 

The Witness: In the lubrication department; 
that is right [81] on the street shop, on the Brand 
side. 

Trial Examiner Myers : And who were working* 
on these two machines March 23 and 24? 

The Witness : Well, when I was out there, Tiny 
was adjusting a set of brakes. 

Q. (By Mr. Nutter) : Tiny who? 

A. I don't know his last name — Tiny, a lube 
man. 

Q. You mean you were out in the lube depart- 
ment and you saw him? 

A. Adjusting brakes. 

Q. What date was that? 

A. That was March — they were doing — there 
were two days there, March 23 and March 24. 

Q. You mean this Tiny, this lube man, was do- 
ing it on both days ? 

A. The next day they were bleeding a set of 
brakes, you know, bleeding. 

Trial Examiner Myers: Wait a minute. How 
many times did you see Tiny, the lube man, adjust 
brakes in the lube department? A. One day. 

Q. What day was that? A. The 23rd. 

Q. Of March? A. March, 1950. [82] 



142 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. Now, what date did you see somebody bleed 
the brakes'? 

A. They were bleeding the brakes 

Q. Well, wait, now. What date? 

A. The 24th of March, 1950. 

Q. And who were doing that? 

A. They were both. 

Q. Who were both? 

A. The two lube men; one of them is Bordeau 
and the other one is Tiny. 

Q. Now, will you try to remember to say names 
instead of pronouns like he, they and we? 

A. Yes, sir. 

Q. (By Mr. Nutter) : Did your duties as brake 
man require that you bleed brakes? 

A. When it was wrote on the order to bleed the 
system. 

Q. I see; and w^hat does that consist of? Will 
you tell us w T hat that is ? 

A. Well, in the brake department we have a 
bleeder tank. 

Q. What do you do when you bleed brakes? 
What process is involved? 

A. Let the air out of the lines. 

Trial Examiner Myers: Why do you bleed the 
brakes ? 

The Witness: If it gets air in the lines, you 
know, in a hydraulic system, you have a spongy 
pedal, and you have to bleed that air out to get it 
out of the lines. [83] 



vs. Howell Chevrolet Co., etc. 143 

(Testimony of Claude Leonard.) 

Trial Examiner Myers: In order to make the 
brakes effective? 

The Witness : That is right. 

Trial Examiner Myers: And when there is air 
in the hydraulic system, the brakes do not work 
effectively f 

The Witness: That is right; they are not effec- 
tive. They get a spongy pedal. 

Q. (By Mr. Nutter) : Now, what process do 
you go through when you adjust brakes? 

A. We adjust each wheel; you adjust your shoe 
up to your drum, to the proper clearance. 

Q. And just what do you do? Physically, what 
do you do ? 

A. Well, you take a brake-adjusting spoon 
which you use. It has got a little cog in there you 
have to turn to adjust the shoes, spread them out 
close to the drums. 

Q. Now, on any other occasion did you see any 
men in the lubrication department adjusting or 
bleeding brakes ? 

A. Well, I didn't see them in the lubrication de- 
partment. I saw 

Mr. Nicoson: Objected to as not being respon- 
sive. All he asked was about the lubrication depart- 
ment. 

Trial Examiner Myers: Sustain the objection. 

Q. (By Mr. Nutter) : Can you first answer me 
as to the lubrication department? 



144 National Labor Relations Board 

(Testimony of Claude Leonard.) 

A. I didn't see any work being done in the lu- 
brication [84] department. 

Trial Examiner Myers: Where did you see 
it 

The Witness: I 



Trial Examiner Myers: if you did*? 

The Witness: I saw Prank Hogan give him a 
brake adjust to do that they were doing body work 
on. And Bordeau told me that he was supposed to 
adjust them. 

Trial Examiner Myers: Young Bordeau? 

The Witness: Young Bordeau. And I said, 
"That belongs to the brake department." And he 
said he had orders to adjust the brakes. So I didn't 
adjust them; I suppose he did. 

Mr. Nieoson: Move to strike what he supposed. 

Trial Examiner Myers: Strike what he sup- 
poses. 

Q. (By Mr. Nutter) : Was there any other oc- 
casions when you saw anyone adjusting or bleeding 
brakes or working on the brakes'? 

A. Other than the lubrication department? 

Q. Other than the ones you have testified to. 

A. Yes, there were some 

Trial Examiner Myers: Well, when was this 
that the body man 

A. The date I don't know. 

Q. What month? A. It was in March. 

Q. Of 1950? [85] A. Yes. 



vs. Howell Chevrolet Co., etc. 145 

Q. Now, you are going to tell us about another 
time? A. There were 

Q. When? 

A. In February, the date I don't know. 

Q. What part of February? 

A. The tune-up department. 

Q. What part of February? 

A. Around the middle part of February. 

Mr. Nutter: Is this 1950? 

The Witness : 1950. 

Trial Examiner Myers: And in what part of 
March was the other one that the body man was 
working on? 

A. It was around — oh, around the last part of 
March, just before I was laid off. 

Q. (By Mr. Nutter) : Now, can you tell us 
about this occasion that you said happened in the 
middle of February of 1950? 

A. That was the tune-up man doing work I 
should have done, replacing stoplights' switches 
and hydraulic system. 

Q. Well, was it your regular duty to replace 
stoplight switches? 

A. It is — because you got to open up your mas- 
ter cylinder to take the stoplight switch out and 
put a new one in. 



146 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. You mean the master brake cylinder? [86] 

A. That is right — from '42 on up. That is the 
electrical system from '42 on back. But from '42 
on up you got to open up your master cylinder to 
get into the hydraulic system. 

Q. Was it also your duty to do the work on the 
hydraulic systems? 

A. Sure — that pertains to brakes. 

Q. Do you know the individual who was doing 
this work? A. Doyle Christian. 

Q. Whereabouts did Christian work? 

A. In the tune-up department. 

Q. Whereabouts is the tune-up department in 
relation to where you were ? 

A. Well, that is right as you come in the front 
door. 

Trial Examiner Myers : Well, how far is it from 
your stall? 

The Witness : Oh, 75 feet, approximately. 

Trial Examiner Myers: On the same floor? 

The Witness: Same floor. 

Q. (By Mr. Nutter) : Did you on any other oc- 
casion in 1950 see any work being done on brakes 
in any other departments of the plant? 

A. Yes, the front end man done some brake 
work — Kenny. 

Q. Kenny Herrick? A. Herrick. 



vs. Howell Chevrolet Co., etc. 147 

(Testimony of Claude Leonard.) 

Q. And when was that and where was it? What 
took place? 

A. Well, this was a master cylinder that I had 
overhauled on [87] a Chevrolet. I overhauled the 
master cylinder then bled the lines — and I still 
didn't have much pedal. I had about a half a pedal, 
but it was solid. 

So I told Ed — that is the service salesman — that 
it needed the brake adjustment. He said, "No, it 
has been adjusted.' ' 

The guy told him it had been adjusted — the cus- 
tomer. 

Q. When was this? 

A. This was, oh, about the middle of March, I 
imagine. The dates I can't recall. 

Trial Examiner Myers: You mean about the 
middle of March 

The Witness: Of 1950. 

Q. (By Mr. Nutter) : Now, can you go on and 
tell us what happened ? A. So he 

Trial Examiner Myers: Who is "he"? 

The Witness: Ed said no, that the customer 
told him that he just had the brakes adjusted. 

Well, I couldn't go ahead and adjust them with- 
out authority. So the car went out; it come back 
in the second day with brake trouble. 

So they give it to Kenny, the front end man, and 
told him to repair the master cylinder. So I was 
busy on a brake reline, but I knew he got the mas- 



148 National Labor Relations Board 

(Testimony of Claude Leonard.) 

ter cylinder. So he tore it [88] down and asked me 

to come there and look at it. 

Trial Examiner Myers: Who is "he"? 

The Witness : Kenny. And he asked me to come 
out and look at it. I went out and said, "You are 
doing it. It is your job. It is up to you." 

And he said, "I can't find a thing wrong with it." 

So Kenny put the master cylinder back together, 
bled the lines, and he still had the same trouble I 
had. So I told him if he would adjust the brakes 
which I wanted to do to start with, the pedal would 
be all right. 

So Kenny went and asked Ed; and Ed said no, 
it didn't need brake adjustment. So Kenny and I 
adjusted the brakes anyway until we had a solid 

pedal. 

* * ■* 

Q. (By Mr. Nutter) : Now, Mr. Leonard, were 
there any other occasions when you saw anyone else 
doing brake work in the months of February and 
March of 1950? 

A. Not that I recall right now. 

Trial Examiner Myers: Well, did you see any- 
body do any kind of work that you normally did, 
that you saw them do in February or March of 
1950, work that you ordinarily were asked to [89] 
do? 

The Witness: No. That is about all, I believe. 
There was sometimes when I would be too busy to 



vs. Howell Chevrolet Co., etc. 149 

(Testimony of Claude Leonard.) 

take a job and they would give it to somebody else 

— which is right. [90] 



Q. (By Mr. Nutter) : Now, Mr. Leonard, after 
you w T ere discharged did you at any time return to 
the Howell Chevrolet plant? 

A. Yes, I was down there a couple of times 
after. 

Q. Well, will you tell us about when you were 
down there? 

A. Well, the one I remember most was 

Trial Examiner Myers: Was that the first time 
or the second time? 

The Witness: That was the last time. 

Trial Examiner Myers: How many times were 
you there? 

The Witness: I was there about three times. 

Q. (By Mr. Nutter) : All right. Now, this last 
time, when was that? 

A. The last time was on July — the date I don't 
recall. It was the day they had the election there. 

Q. June 1, 1950? 

A. I say I don't recall the date. [91] 

Mr. Nutter: May it be stipulated that the elec- 
tion was held on June 1, 1950? 

Trial Examiner Myers : What election ? 

Mr. Nutter: The election in Case 21-RC-1146. 



150 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Mr. Nicoson: We will stipulate that is the date. 

Mr. Skagen: So stipulated. 

Q. (By Mr. Nutter) : Now, can you tell us 
what time you were down at the plant on that date ? 

A. It was around 11:30, I guess. That is as 
close as I could get. 

Q. 11 :30 in the morning ? 

A. In the morning. 

Q. And whom did you see down there*? 

A. Well, I saw some of the boys I used to work 
with. 

Q. Did you see anybody else? 

A. I was talking to George Kirkland, and then 
he went away, and I was down there by the job 
he was working on. 

Mr. Howell came up to me. I didn't know T there 
was anybody close to me. He came up by the side 
of me and I looked around and saw who it was. He 
asked me what I was doing there, and I said, "I 
come down to see the boys." And he said that un- 
less I had some good business there, "You will 
have to get out." 

And I said, "I didn't know you felt that way 
about it." And he said, "I sure do." [92] 

So I had to get out. 

Q. Is that all there was to it? 

A. That is all he said. 



vs. Howell Chevrolet Co., etc. 151 

(Testimony of Claude Leonard.) 

Cross-Examination 
By Mr. Nicoson: [93] 



Q. And then you came back to Mr. Howell, that 
is, the second time, and you came back strictly as 
a brakeman? A. That is right. 

Q. That was the understanding when you came 
back to work that you would be a brakeman and 
that you would not be called upon to do any line 
work? 

A. No, I didn't say I wouldn't be called upon 
to do anything — because he hired me, because I was 
an all-around mechanic to do anything. 

Q. I see. But you were not hired as an all-around 
mechanic, [104] were you? 

A. No, I was hired as a brakeman. 

Q. You were hired only as a brakeman; is that 
correct? A. That is right. 

Q. And you understood at the time you were 
hired as a brakeman that that is the type of work 
that you were to do ; right ? A. Yes. 

Q. You understood that you were to perform 
any work on the line as a mechanic ; is that correct ? 

A. Well now, I wouldn't say that — because 
when I wasn't busy and they were busy on the line, 
the service manager would give me work of that 
kind. 

Q. Did the service manager say that at the time 
he put you on as a brakeman? A. No. 



152 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. He did not say that? 

A. No, there was nothing said about that. 

Q. All right; if you will just stay with me a 
minute, we will be all right. When you got hired 
the second time it was exclusively as a [105] 

brakeman ? 

# # * 

The Witness : He said he put me on brakes be- 
cause — if I wasn't busy on brakes that he could 
always swing something else to me. 

Q. (By Mr. Nicolson) : All right. Now, it is 
your testimony that when you were not busy on 
brakes, he did swing other things? 

A. He did. 

Q. When you did not have a brake job or work 
of that type, then he would put you on the line; 
right? A. Yes. 

Q. Or some other task? 

A. Something 

Q. Some other task to fill in your time? 

A. Yes. 

Q. That is correct? A. Yes. 

Q. So that he did fill up the blank time on the 
brake job, where he could, with other types of me- 
chanical work which he thought you were qualified 
to do; right? A. That is right. 

Q. Now, how many times would you say you 
worked on front ends while you were out there? 

Trial Examiner Myers: You are referring to 
the second time? 



vs. Howell Chevrolet Co., etc. 153 

(Testimony of Claude Leonard.) 

Mr. Nicoson : Second time, yes. [106] 

The Witness: Well, I had that and the brakes. 

Q. (By Mr. Nicoson) : No, let us confine our- 
selves if you will to front ends. How many times 
did you work on front ends during the time you 
were out there the second time? 

A. That is hard to say because I was on it two 
weeks w r hile the man was on his vacation. You just 
don't exactly keep tabs on the jobs you do. 

Q. You know then of two weeks while the man 
w r as on his vacation that you took care of front- 
end work ? A. That is right. 

Q. And that was in 1949 or 1950? A. '49. 

Q. '49? All right. 

Trial Examiner Myers: Well, when did you go 
back? 1949? 

The Witness: '48. 

Trial Examiner Myers : You were working there 
from when in 1948? 

The Witness: February of 1948 till March of 
1950. 

Trial Examiner Myers: Is it over two years? 

The Witness: That is right. 

Q. (By Mr. Nicoson) : All right. Now, when 
were other occasions when you worked on front 
ends? 

A. Well, the front-end man was off quite a bit 
and when he was off I would be asked to do front- 
end work. 



154 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. And what type of front-end work did you 
do? [107] A. All kinds. 

Q. All right. Name some of them. 

A. Kingpins and bushings. 

Q. Kingpins ? What is that % 

A. That is your kingpins that holds your spin- 
dles to the axles. 

Trial Examiner Myers: Well, do they have an- 
other name for it? 

The Witness: Kingpins and bushings — that is 
the right name. 

Q. (By Mr. Mcoson) : And what would you do 
with the kingpins? 

A. Replace them if they were worn. 

Q. Was that the only thing 

Trial Examiner Myers: Well, that had to do 
with the alignment, did it not? 

The Witness : Your kingpins are your pins that 
hold your car. 

Trial Examiner Myers: That is with the align- 
ment of the wheels? 

The Witness: That is right. 

Q. (By Mr. Mcoson) : What would happen if 
the kingpins were worn? 

A. You would have a shimmied front end. 

Q. That is what causes the wheels to shimmy? 
Is that correct? 

A. Well, other things could cause them to 
shimmy, too. [108] 

Q. But that would cause it, too, would it not? 



vs. Howell Chevrolet Co., etc. 155 

(Testimony of Claude Leonard.) 

A. Yes, sir. 

Q. Would it cause the wheels to run crooked 
and out of line? A. Out of line. 

Q. And cause tire wear, et cetera? 

A. Tire wear. 

Q. The only way to repair that is to take the 
kingpins out and put new ones in? 

A. That is right, kingpins and bushings. 

Q. How many times did you do that? 

A. I don't usually keep tab of the jobs I do. 

Q. Do you have any idea? A. No idea. 

Q. You do not know whether it was one or a 
million? A. It was more than one. 

Q. Well, that could be two. Could it be more 
than two? A. More than two. 

Q. What is your present recollection of it? 

Trial Examiner Myers: Approximately? 

The Witness : In the two weeks you would prob- 
ably have three to four sets of kingpins to put in; 
maybe the same number of upper and lower pivot 
pins. 

Q. (By Mr. Nicoson) : Is that your recollection 
of the number that you put in? 

A. Well, the four — they usually run that much 
in two weeks. [109] 

Q. That is not your testimony that you put in 
three or four kingpins every week, is it? 

A. I was working there 

Trial Examiner Myers: He is talking about the 
two weeks that he worked there 



156 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Mr. Mcoson: I understand that. 

Trial Examiner Myers : while somebody was 

away. 

Mr. Mcoson: I just wanted the record to show 
that it was not his testimony that he put in three 
or four kingpins every two-week period. 

Q. (By Mr. Mcoson) : Well, is it your recollec- 
tion that the three or four kingpins that you put 
in were put in during this period that the front-end 
man was on his two-weeks' vacation? 

A. That is the most at one time that I handled — 
that was during the two weeks. Maybe the other 
time would only be one day, maybe two days ; every 
time he would be off I would be assigned to take 
care of the front-end work, which sometimes 
wouldn't even have a job out there. 

Q. So that when the brake work was done, why, 
they would fill in your idle time with front-end 
work? 

A. No, I had to take care of the brake work, too. 

Q. Well, you could not do front-end work and 
brake work at the same time. 

A. There is a lot of places the front-end man 
does the front end and brake work. [110] 

Q. Well, would you mind answering the ques- 
tion? Could you do those two jobs at one and the 
same time ? 

A. Well, sure, you could handle brakes with the 
front end. 

Q. You mean you could put in the kingpins and 
adjust the brakes at the same time? 



vs. Howell Chevrolet Co., etc. 157 

(Testimony of Claude Leonard.) 

Mr. Nutter: Mr. Examiner, I think that 

Trial Examiner Myers: Well, he does not mean 
at the same moment. 

Mr. Nicoson: I do not know what he means. 

Mr. Nutter: Mr. Examiner 

Trial Examiner Myers: Wait a minute now. 

Trial Examiner Myers: When a car comes in to 
have something done with the brakes and also some- 
thing done with the front end, is it normally as- 
signed to one man ? 

A. If they have a brakeman 

Q. All right. Now, you take Howell's. He has 
a brakeman and a front-end man. A. Yes. 

Q. If a car came in and needed the front end 
fixed or inspected, and the brakes fixed or inspected, 
would that car be assigned to one man? 

A. If it had a brake job it would be assigned 
to a brake job; if a front-end job, it would be as- 
signed to the front-end man. 

Q. Well, if a car has two jobs to be done on it, 
front end and brakes [HI] 

A. Well, it would be assigned to two different 
departments. 

Q. That is what he wants to know. So when they 
needed front end and brakes and they did not have 
a front-end man, you would take care of both jobs ? 

A. Yes, if they needed it. 

Q. All right. Which one would you do first? 

A. If they had a front end and brakes? 

Q. It did have it. My car was busted and needed 
the front end and the brakes fixed. 



158 National Labor Relations Board 

(Testimony of Claude Leonard.) 

A. Well, you do them then in conjunction, be- 
cause you have to pull your wheels and then do 
both jobs. 

Q. (By Mr. Nicoson) : You say you have to 
pull your wheels to do a brake job? 

A. Well, I wouldn't know how else to do them. 

Q. All right; and what do you have to do to 
do a kingpin job? 

A. You have to pull your wheels. 

Q. Is the amount of pulling your wheels more 
on a kingpin job than it is on a brake job, or is 
it the same? A. What do you mean? 

Mr. Nutter: I submit that the question is un- 
intelligible. 

Q. (By Mr. -Nicoson) : Do you take off more of 
the wheel to do the brake job or the front-end job ? 

Mr. Nutter: I submit the question is still un- 
intelligible. I do not know what "more of the 
wheel" is. 

Trial Examiner Myers : Well, maybe if you just 
listen. [112] 

Mr. Nicoson: I do not know about automobile 
repairing; I am trying to find out. 

Trial Examiner Myers: I cannot say whether 
"more" is unintelligible, because I do not know 
enough about automobile mechanics. I will overrule 
the objection. 

The Witness: You have to pull your wheel and 
drum to get to either one. 

Q. (By Mr. Nicoson) : You do not have to take 
off the drum for a brake adjustment? 



vs. Howell Chevrolet Co., etc. 159 

(Testimony of Claude Leonard.) 

A. Not a brake adjustment. 

Q. You do not even have to take the wheel off 
for a brake adjustment? 

A. Not a brake adjustment. 

Q. But you do have to take it off for a kingpin 
job? 

A. You have to take it off for a brake-relining 
job. 

Q. But you do have to take the drum off for a 
kingpin job? 

A. For a kingpin job, and for a brake relining 
job. 

Q. Now, in this front-end job at Howell's, would 
you describe the stall in which the front-end work 
was done? Was there one or was there two stalls? 

A. Two stalls : One where you usually tear them 
down, the front-end man tears them down and puts 
in the kingpins, pivot pins, and whatever is to be 
done; and then when he reassembles it, why, he 
pulls it up on the front-end machine and lines 
it up. [113] 

Q. All right. Now, when you speak of front-end 
work you confine that job solely to the type of work 
that you have been describing here as front end ; is 
that all of that job at Howell's? 

A. Front-end work. 

Q. The front-end man is confined only to the 
type of front-end work that you have been telling 
us about? 

A. He was when I worked there. 



160 National Labor Relations Board 

(Testimony of Claude Leonard.) 

Q. Is it not a fact that this particular front-end 
man also was required to straighten frames'? 

A. That is right. 

Q. And they have at Mr. Howell's a frame- 
straightening machine, for want of a better word; 
is that correct? A. Yes. 

Q. And is it not also a fact that you never 
worked on that machine during the entire time you 
worked at Howell's? 

A. They never had a frame to be straightened. 

* * * 

Q. Did you work on straightening frames at any 
time? A. No. 

Q. Had you ever worked on straightening 
frames? A. No. 

Q. You had no experience on working with that 
machine out there that straightens the [114] 
frames? A. No frame machine. [115] 



vs. Howell Chevrolet Co., etc. 161 

GEORGE A. KIRKLAND 
a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined and 
testified as follows: 



Direct Examination 
By Mr. Nutter : 

Q. Mr. Kirkland, what is your occupation 
A. Mechanic, automobile mechanic. [123] 



Q. And you are employed by some one, are you ? 
A. No, it is my own business. 
Q. And have you worked at the Respondent 
Howell Chevrolet Company? A. Yes. 

Q. And will you tell us when that was? 
A. I worked from October, 1945, to September 

in 1950. 

* * * 

Q. (By Mr. Nutter) : Mr. Kirkland, I show you 
this card and ask if you can identify that. Is that 
your signature? 

A. Yes, that is an authorization -card I signed. 

Q. Can you tell us when you signed it ? 

A. 1/28. 

Q. You mean January 28 in what year? 

A. 1950. [124] 



(The document heretofore marked General 
Counsel's Exhibit No. 18 for identification was 
received in evidence.) 



162 National Labor Relations Board 

(Testimony of George A. Kirkland.) 

GENERAL COUNSEL'S EXHIBIT No. 18 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No 

Home Address — St. : 202 Lamour Dr. 
City: La Canada. 

Tel. No. : 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 

Date: Jan. 28, 1950. 

/s/ GEORGE A. KIRKLAND. 

(Signature of Employee.) 

GEORGE A. KIRKLAND. 

(IPlease Print Name.) 

Admitted November 1, 1950. 



vs. Hoivell Chevrolet Co., etc. 163 

(Testimony of George A. Kirkland.) 

Q. (By Mr. Nutter) : Now, Mr. Kirkland, do 
you know a man by the name of Frank Ogen? 

A. I do. 

Q. Who is Mr. Ogen? 

A. When I worked at Howell Chevrolet in the 
latter part of my tenure there he was the body 
shop foreman. 

Q. Did you have any conversations with Mr. 
Ogen concerning the union while you were em- 
ployed at Howell Chevrolet"? A. Yes. 

Q. Can you tell us when that was? 

A. Oh, that was around the first week in Feb- 
ruary. 

Q. What year? A. 1950. 

Q. And where was this conversation? [125] 

A. Oh, it took place in the parking lot just 
outside of Mr. Ogen's office. 

Q. And who was present? 

A. Mr. Ogen, Claude Leonard and myself. 

Q. And what time of day was it? 

A. It was in the afternoon, is all I can say. 

Q. Now, will you tell us what was said at this 
conversation? 

A. Well, I will have to go back a little bit to 
explain it. 

Mr. Nicoson: I object to him going back. He 
may answer the questions as put to him. 

The Witness: We asked Mr. Ogen 

Trial Examiner Myers: Overruled. You may go 
ahead. Now r don't say "we." We want to know who. 



164 National Labor Relations Board 

(Testimony of George A. Kirkland.) 

The Witness: Oh. Claude Leonard and myself 
went up to talk to Mr. Ogen. 

Trial Examiner Myers: When — this afternoon? 

The Witness : That afternoon. And we asked Mr. 
Ogen where he got his information that all the 
employees that joined the union were going to be 
fired. 

He said he got it from Mr. Howell the evening 
before. 

Q. (By Mr. Nutter) : Was there anything 
more to the conversation 1 

A. No, that was all of it. [126] 



Q. Now, what were your duties at Howell? 

A. Line mechanic. 

Q. And where abouts did you work as a line 
mechanic ? 

A. I worked in the back shop between — well, 
there are four stalls in and across there. 

Q. Pour stalls? 

A. And I worked in the second one from one end. 

Q. And who had the other stalls? 

A. On one side of me was Lee Fitzhugh; on the 
other side was Joe Price. On the other side of Joe 
Price was Claude Leonard. 

Q. While you were working in your stall could 
you see individuals who were working in the stall 
that Claude Leonard worked in? A. Yes. 

Q. Now, do you recollect how long Claude Leon- 
ard worked at Howell? Did he work there all the 
time you worked there ? 



vs. Howell Chevrolet Co., etc. 165 

(Testimony of George A. Kirkland.) 

A. No ; about two years of that time. 

Q. And do you recall about when he left the 
employment there? 

A. I believe it was the latter part of March. 

Q. And after Claude Leonard left employment at 
Howell did you see any individual working in his 
stall — brake stall? 

A. Yes, for a few days until they moved the 
brake stall outside. [127] 

Q. Yes. And who did you see there? 

A. The man that took over the brake work, 
Kenny Herrick, would come in there and do the 
work that was necessary to be done on the equip- 
ment that was inside. 

Q. Now, before Claude Leonard left his employ- 
ment at Howell Chevrolet, during the months of 
February and March, 1950, did you see anyone else 
doing brake work there? A. Yes. 

Q. And when and where and who did you see 1 

A. Well, all during that time the brake adjust- 
ments were taken out to the lube rack. 

Q. And did you see whom working on the brake 
adjustments on the lube rack? 

A. Fred Bordeau and Tiny Reeves. 

Q. And when was this that you saw this brake 
work done at the lube rack? 

A. It was during February and March. 

Q. 1950? A. 1950. [128] 



Q. Now, did you see anybody adjusting brake 



166 National Labor Relations Board 

(Testimony of George A. Kirkland.) 
out on the lube rack'? How many times did you see 
individuals adjusting brakes out on the lube rack 
at Howell Chevrolet? 

A. I checked on it four or five times. 

Q. Four or five times? A. Yes. 

Trial Examiner Myers: During what period? 

The Witness: During that period between Feb- 
ruary and March. 

Trial Examiner Myers: 1950? 

The Witness: 1950. 

Q. (By Mr. Nutter) : And you checked on it 
and you saw someone doing brake adjustments ? 

A. Yes. [129] 

Trial Examiner Myers: Who did you see do- 
ing it? 

The Witness: Fred Bordeau and Tiny Keeve, 
the lubrication man. 

Q. (By Mr. Nutter) : Did you see anyone else 
doing brake work during the months of February 
and March, 1950? 

A. Well, the tune-up man put on stop-light 
switches. 

Q. Who was the tune-up man? 

A. Doyle Christian. 

Q. And when was that — where? 

A. That was during that same period. I don't 
recall any specific time. 

Q. Do you remember on how many occasions you 
saw the tune-up man put on stop-light switches ? 

A. Only twice that I can say definitely. 

Mr. Nutter: I see. 



vs. Howell Chevrolet Co., etc. 167 

(Testimony of George A. Kirkland.) 

Trial Examiner Myers: That is during the pe- 
riod of what ? 

The Witness : During that period February and 
March, 1950. 

Q. (By Mr. Nutter) : Now, during the time that 
you were employed at Howell Chevrolet did you 
hear any speeches made by Mr. Potruch, the counsel 
here? A. I did. 

Q. Now, can you tell us when that was? 

A. As near as I can recall it was the middle or 
the latter part of April. [130] 

Q. 1950? A. 1950. 

Q. Now, can you tell us what occasion this was 
and who was present? 

A. Well, one morning — that was just before 
noon, I believe. Mr. Bordeau came around and told 
us to gather over in this specified spot in the shop, 
that "we are going to have a little meeting." 

So all the employees gathered over there and Mr. 
Howell introduced Mr. Potruch as the company 
lawyer. He said we were having a little labor diffi- 
culty and Mr. Potruch was going to explain the 
company's policy. 

Q. Now, will you tell us what Mr. Potruch said 
at this meeting. 

A. Mr. Potruch said Howell Chevrolet was a 
small company and he did not think we needed a 
union; if we had any problems we could go to Mr. 
Howell and he would straighten them out for us. 

He also said that we would never get a union 



168 National Labor Relations Board 

(Testimony of George A. Kirkland.) 
contract at Howell Chevrolet; that we would have 
to strike, and that it would be a long strike as they 
would take it to the courts and fight it clear up to 
the Supreme Court. They would fight it because 
they didn't like a group of men in Washington 
telling them how to run their business. He also 
said he would fight it to Mr. Howell's last [131] 
dollar. 

Q. Was there anything else said by Mr. Pot- 
ruch at this meeting? 

A. He said if Mr. Howell didn't take care of 
our problems we should take a rope and take him 
out and hang him. 

Q. Anything else said? 

A. I can't recall. [132] 

Q. Was there anything else said that you recall ? 

A. Oh, he took out a little book and read a 
passage out of it pertaining to the labor law and 
said that that showed that Howell Chevrolet Com- 
pany could sue to show that they were not in inter- 
state commerce. 

Mr. Nutter: That's all. 



Cross-Examination 
By Mr. Nicoson : 

Q. You were there at the time Mr. Leonard left, 
were you not ? A. Yes. 

Q. And after he left the only person who worked 
in his stall was Mr. Herrick, wasn't it? 

A. In the stall where he was, yes. 



vs. Howell Chevrolet Co., etc. 169 

(Testimony of George A. Kirkland.) 

Q. And then after that they moved some of the 
equipment outside near the frame straightening 
rack? A. Yes. [133] 

Q. And after that time Mr. Herrick worked 
there, too? A. Yes. 

Q. And the stall where Mr. Leonard had been 
working was reconverted to a line mechanic, wasn't 
it? A. Yes. 

Q. And then the brake work and front-end work 
was all done by Mr. Herrick outside in this new 
place where they moved the equipment? 

A. Yes. 

Q. And he was the only one that worked at that 
place, wasn't he? 

A. When he would get busy he would have a 
man come in and help him. 

Q. He brought a man in from outside, didn't he? 

A. I don't know. It was a new man there. He 
just came in at those times. 

Q. He was only there a few days? 

A. Yes. He would come off and on. 

Q. A day at a time? A. Yes. 

Q. Probably one day a month? 

A. No, I think it was more than that. I would 
say about six or eight times. 

Q. But you didn't make any particular check as 
to how often he came in or who paid him, or any- 
thing about it? [134] A. No. 

Q. Now, you stated something about discovering 
brake work being done on the lube rack. Didn't 



170 National Labor Relations Board 

(Testimony of George A. Kirkland.) 
you know that brake work had been done on the 
lube rack all the time that you were out there — 
long before you came? 

A. It had been done out there when the brake 
man was busy and couldn't take care of it. 

Q. As a matter of fact, it had been the practice 
of the company to do these minor brake jobs on the 
lube rack because it was convenient ? 

A. When the brake man was busy. 

Q. You say you know about brakes ? 

A. Yes. 

Q. And the adjustment is not a terrifically com- 
plicated thing, is it? A. No. 

Q. It consists something of taking a wrench or 
a tool and tightening a set-screw, or some arrange- 
ment like that, which expands the shoes ? 

A. Yes. 

Q. And it is quite a simple matter to do that 
while the car is on the lube hoist and it is easy 
to get to, isn't it? A. That is right. 

Q. And ordinarily that wouldn't take very long, 
would it, four or five minutes at the most ? [135] 

A. Well, you have to check the fluid. It takes a 
little longer than that. 

Q. Well, if you are just adjusting the brakes 
without checking the fluid. Of course you would 
have to bring it down to check the fluid. You can't 
do that while it is up in the air. So that the 
mechanical time actually devoted to the setting of 
these set-screws is three or four or five minutes, is 
very short? A. About ten minutes, yes, sir. 



vs. Howell Chevrolet Co., etc. 171 

(Testimony of George A. Kirkland.) 

Q. Now, isn't it also a fact that the tune-up man 
had been working on stop-light switches for a long, 
long time? 

A. He had been working on the later type stop- 
light switches, which are electric. The earlier type 
are hydraulic. Those are the ones we were speak- 
ing of. 

Q. And the electric stop-light switches have been 
part of the tune-up job as long as you have known 
about the electric stop-light switches'? 

A. That is right. 

Q. Now, just take the speech of Mr. Potruch. 
Mr. Potruch didn't tell you that anybody would be 
fired if they joined the union, did he? A. No. 

Q. He didn't say — he didn't give you any 
promises of any benefits or anything like that if 
you voted against the union, did he? [136] 

A. No. 

Q. He told you that the Howell Chevrolet Com- 
pany thought that the Howell Chevrolet Company 
was not engaged in commerce, in interstate com- 
merce. Isn't that right? A. Yes. 

* * * 

Q. And he also told you that because of that 
thought or conviction he was of the opinion that 
the matter should be tested in court. Isn't that cor- 
rect ? A. He said it should be tested in court. 

Q. And he outlined to you the only steps avail- 
able to the company to get that into court for 
review ? A. Yes. 



172 National Labor Relations Board 

(Testimony of George A. Kirkland.) 

Q. And he told you that if he did not succeed 
in the first review that it may be necessary to go 
to the Supreme Court of the United States? 

A. Yes. 

Q. Now he also told you that in order to get that 
case to the court, under the rules of the Board and 
the law, it would be necessary for the company to 
take a position of refusing to bargain in order to 
test the Board's finding, didn't he, or something to 
that effect? [137] A. Yes. 

Q. And that was the only available way that the 
company had to get the matter into court for test 
on the jurisdiction question? He said that, didn't 
he? A. Yes. [138] 



Q. And he told you that the company couldn't 
make any changes at that time with the Labor 
Board case pending, because they would probably 
be charged with unfair labor practice if they did; 
isn't that right? A. No. 

Q. What did he say about that? 

A. He said they couldn't make any labor 
changes unless they asked the union. 



Q. Well now, specifically he said that with this 
Labor Board case pending the company couldn't 
raise any wages, didn't he? 

A. Without asking the union. 

Q. Without asking the union. He also said that 



vs. Howell Chevrolet Co., etc. 173 

(Testimony of George A. Kirkland.) 
they couldn't make any changes in working con- 
ditions? A. That is right. [140] 



Q. Mr. Potruch told you and the rest of the 
employees there that it was your right to join the 

union if you wanted to? A. Yes. 

* * * 

Q. Well, he did tell you that the employer had 
nothing to say about whether you joined the union 
or not? A. Yes. 

Q. Any more than the employer could say that 
you could join the Elks, Masons or any other fra- 
ternity. He said that, didn't he? 

Trial Examiner Myers: Answer, will you, 
please ? 

The Witness: Yes. 

Q. (By Mr. Nicoson) : Now, he also expressed 
a personal opinion to you about the need of the 
union, didn't he? A. Yes. 

Q. And he told you that in his judgment the way 
the thing should be handled was that if you had a 
beef with the employer [141] that you ought to 
give the employer a chance first, isn't that right? 

A. Yes. 

Q. And then if the employer didn't make the 
adjustment to your satisfaction, you ought to try 

to hang him? A. Yes. 

* * # 

Q. Now, this second time he spoke to you, you 
say was a little group inside Mr. Bordeau's office? 
A. Yes. [142] 



174 National Labor Relations Board 

(Testimony of George A. Kirkland.) 

Q. And at that meeting he explained to you the 
ballot? A. Yes. 

Q. He had a sample ballot in his hand and he 
held it up for you to look at? A. Yes, sir. 

Q. And he told you that there were two methods 
of marking the ballot? A. Yes. 

Q. If you wanted to vote for the union you 
would put your X in this square where it said for 
the unions? A. Yes. 

Q. And if you wanted to vote against the union 
you would put your X over in the square where it 
says "No Union"? A. Yes. 

Q. And he also told you that this election would 
be held by an agent of the government from the 
National Labor Relations Board? A. Yes. 

Q. And that this agent would come out and he 
would be the one that would conduct the election, 
right? A. Yes. 

Q. That the agent would be the only one to 
handle the ballot except you and the other voters? 

A. Yes. 

Q. That the agent would hand you a ballot ; that 
you would [143] go in a secret booth and would 
secretly mark it and you would yourself personally 
put it in a ballot box? A. Yes. 

Q. And that no one would ever know, unless you 
told them, how that ballot was marked, isn't that 
right? He told you all of that? 

A. That is right. 

Q. And that is the way it happened, wasn't it? 

A. That is right. 



vs. Howell Chevrolet Co., etc. 175 

(Testimony of George A. Kirkland.) 

Q. Was anything said by Mr. Potruch that 
caused you to mark your ballot in any particular 
way? 

Mr. Nutter: Mr. Examiner, I object to this 
question. 

Trial Examiner Myers: I will sustain the objec- 
tion. 

Mr. Nicoson: Your Honor, I don't like to argue 
these things with you, but he makes an objection 
without giving any grounds, and you make a ruling 
without giving any grounds. I 

Trial Examiner Myers: There are several court 
decisions on that question. 

Mr. Nicoson : That may be so, but the record still 
doesn't show the basis of the objection or the basis 
of the ruling. [144] 

* * # 

Redirect Examination 
By Mr. Nutter : 

Q. Mr. Kirkland, you testified on cross-examina- 
tion that it was the practice to do brake jobs — that 
it was the practice of the lube man to do brake jobs 
when the brake man was busy. On these occasions 
that you testified that the lube man did brake jobs — 
I mean in February and March — did you see Mr. 
Leonard working ? A. No. 

Q. Was he working? A. No, he was not. 

Q. (By Mr. Nutter) : You testified on cross- 
examination, according to my notes, that Mr. 
Potruch said that there would be no changes in 



176 National Labor Relations Board 

(Testimony of George A. Kirkland.) 
working conditions unless the company asked the 
union. Did Mr. Potruch make a statement after 
that? [145] 

A. Yes. He said, "And by God, we won't do 

that." 

* * * 

Q. (By Mr. Skagen) : Mr. Kirkland, on cross- 
examination you testified that it was a simple mat- 
ter to adjust brakes. Would you explain what you 
mean by that? 

A. Well, it is a simple matter to get the tool 
up there and wiggle it in the hole to adjust the 
brakes. 

Q. Would it be a simple matter for a person 
who didn't know anything about adjusting brakes? 

A. Well, I have seen some come in from the lube 
rack that were improperly adjusted. [146] 



Recross-Examination 
By Mr. Nicoson: 

Q. On this brake adjustment, Mr. Kirkland, the 
usual practice is to take this wrench or tool and 
bring it up just as tight as you can get it until the 
wheel is practically locked and then ease off the 
adjustment until the wheel turns fairly easily; isn't 
that correct? A. Yes. 

Q. And that is the process ? A. Yes. 

Q. And that is all there is to it? Isn't that 
right? A. Yes, sir. [147] 



vs. Howell Chevrolet Co., etc. 177 

(Testimony of George A. Kirkland.) 

Q. Don't you also know that at Howell Chevro- 
let that the lube men do other types of minor 
mechanical wT>rk like putting on mufflers and tail 
pipes, and so forth? 

A. They did after Mr. Bordeau came there. 

Q. That is right. And their mechanical work 
isn't confined simply to making these minor brake 
adjustments. They do other types of mechanical 
w T ork on the lube rack merely because it is con- 
venient to do it while the car is in the air ? [148] 



LEE E. FITZHUGH 

a witness called by and on behalf of the General 

Counsel, being first duly sworn, was examined and 

testified as follows : 

* * * 

Direct Examination 
By Mr. Nutter: 

Q. Mr. Fitzhugh, what is your business? 

A. Normally a mechanic — line mechanic. 

Q. And what is your business now? 

A. I have a service station and a garage and 
work of my own. 

Q. That is in Sacramento, is it? 

A. The other side of Sacramento. 

Q. Were you formerly employed at Howell 
Chevrolet? A. That is right 

Q. And when was that? 



178 National Labor Relations Board 

(Testimony of Lee E. Fitzhugh.) 

A. Oh, I began there in January of 1946 — Jan- 
uary 1, 1946 — and was employed there until Sep- 
tember the 9th of 1950. [149] 

Q. Mr. Fitzhugh, what were your duties at 
Howell Chevrolet? A. I was a line mechanic. 

Q. And whereabouts did you work at the plant? 

A. I worked in the first stall on the right in 
back, after you got in the back shop. 

Q. I believe you heard Mr. Kirkland's testimony 
about the line-up of mechanics ? A. Yes. 

Q. Is that the way it was when you worked 
there? A. Yes, sir. 

Q. Now, did you work at Howell Chevrolet 
when Claude Leonard worked there? 

A. Yes, sir. 

Q. And did you see Claude Leonard working in 
his stall? A. Yes, sir. 

Q. What kind of work did he do there? 

A. He did brake work. 

Q. Now, while you were working at Howell 
Chevrolet, during the months of February and 
March of 1950, did you see Claude Leonard doing 
brake work? 

A. Yes. He did brake work then. 

Q. Pardon? 

A. Yes. He did brake work then. 

Q. Did you see anyone else at Howell Chevrolet 
doing brake work during the months of February 
and March, 1950? [150] 

A. Well, at times I would go out on the lube 



vs. Howell Chevrolet Co., etc. 179 

(Testimony of Lee E. Fitzhugh.) 

rack after oil, and I would see them adjusting 

brakes out on the lube rack. 

Q. Who was that? 

A. That was Tiny Reeve. 

Q. Tiny Reeve? A. Yes. 

Q. Now, when was this, can you tell us? 

A. Well, it was somewhere in the — oh, February 
or March, somewhere in there. 

Q. On how many occasions did you see Tiny 
Reeve adjusting brakes out on the lube rack? 

A. I don't know exactly how many occasions. I 
never kept track of it or anything like that. I just 
happened to notice him adjusting brakes when I 
went out there. 

Q. Can you give us an approximation ? Approxi- 
mately how many times you saw him. 

A. Maybe two or three times. 

Q. And do you know exactly what he was doing 

when you saw him? 

A. I knew he was adjusting brakes. [151] 

# * ■* 

Q. Now, were you present at the plant when a 
speech was made by Mr. Potruch? A. Yes. 

Q. And when was that? 

A. That was in, I believe, the latter part of 
April. 

Trial Examiner Myers: You mean about the 
latter part of April? 

The Witness: About the latter part of April, 



180 National Labor Relations Board 

(Testimony of Lee E. Fitzhugh.) 

Q. (By Mr. Nutter) : Now, will you tell us 
about that speech, who was present, when it was 
called, and what was said? 

A. Well, Mr. Bordeau, he called us and he said 
there was going to be a meeting and for us to meet 
in a certain place in the shop, that there would be 
a short meeting there of about ten minutes, or some- 
thing to that effect. And so we all gathered there 
and Mr. Howell and Mr. Potruch came out, and 
Mr. Howell introduced Mr. Potruch as his attor- 
ney. He turned the meeting over to Mr. Potruch 
then. 

Q. I see. And would you tell us what Mr. 
Potruch said at the meeting? 

A. Well, Mr. Potruch, he said that he would 
try to explain [152] the company policy; they was 
having some labor difficulty and confusion of some 
kind. You know, labor difficulties of some kind, 
and that he didn't feel as though the union had any 
place in there; that he felt the employees should 
go to Mr. Howell and discuss it with Mr. Howell; 
that he felt he was capable of handling his own 
employees. 

Q. What else did he say? 

A. And he also stated that the union wouldn't 
get any contract with Mr. Howell. That if we 
would go on a strike we would be out on a strike 
for a long time. He also said that he would fight 
the case as long as Mr. Howell had the money to 
fight it with. I think he stated in there, "To his 
last dollar." 



vs. Howell Chevrolet Co., etc. 181 

(Testimony of Lee E. Fitzhugh.) 
Q. Anything else said by Mr. Potrueh? 
A. Well, he also said that he would carry it to 

a higher court, but what court I don't remember. 

He just said a higher court. [153] 



Cross-Examination 
By Mr. Nicoson: 

Q. Mr. Fitzhugh, when you left the employ of 
the Howell Chevrolet Company in September, I 
believe you said, you left there of your own accord 
because of some family difficulties? 

A. Yes, sir. 

Q. And you had an understanding with Mr. 
Bordeau that if you came back to California and 
you wanted to work for Howell and [154] and he 
had a job vacancy you could have it, is that right? 

A. That is right, sir. 

Q. Now, you were one of the employees that 
wore a union button around the shop, weren't you? 

A. Yes, sir. 

Q. Did Mr. Bordeau ever speak to you about 
wearing that button? A. No. 

Q. Did Mr. Howell ever speak to you about 
wearing that button? A. No, sir. 

Q. Did Mr. Bordeau say anything to you about 
the fact that you had worn a button? 

A. No, sir. 

Q. Did Mr. Bordeau or Mr. Howell tell you how 
to vote in the election? A. No, sir. 

Q. Did they try to? A. No, sir. 



182 National Labor Relations Board 

(Testimony of Lee E. Pitzhugh.) 

Q. Did they try to say anything to you about 
how you should vote or not vote ? A. No, sir. 

Q. After Mr. Leonard left, Mr. Herrick was 
given that work, wasn't he? 

A. Yes, sir. [155] 

Q. And the stall in which Mr. Leonard had been 
working, the machinery was moved outside next to 
the frame-straightening rack? A. Yes, sir. 

Q. And that stall was thereafter utilized for a 
line mechanic? A. Yes, sir. 

Q. After that change was there anybody who 
worked on that job outside beside Mr. Herrick? 

A. Part of the time he would have another man 
come in and help him. 

Q. On occasional days? 

A. On occasional days, yes, sir. 

Q. Now, do you know how often he had this 
man come in there? 

A. No, I don't know how often. 

Q. Who operated that frame-straightening ma- 
chine ? 

A. Kenny Herrick, I presume he operated it. 

Q. Who? 

A. Kenny Herrick. Now, this fellow that came 
in and helped him, he would also work on the frame 
machine, too. 

Q. (By Mr. Nicoson) : Now, did you ever see 
Mr. Leonard do any work on the frame machine ? 

A. No, sir. 

Q. Have you ever done any work on those frame 
machines? [156] A. No, sir. 



vs. Howell Chevrolet Co., etc. 183 

(Testimony of Lee E. Fitzhugh.) 

Q. You have seen them, though? 

A. Yes, sir. 

Q. Are they somewhat complicated in their 
operation ? 

A. I don't know whether they are complicated 
or not. It looks like a lot of heavy work there. 



Q. Mr. Potruch said to you that the company 
had no hand in bringing the union into the shop, 
or words to that effect, [157] didn't he? 

A. I can't remember for sure whether he said 
that or not. He could have said it, but I don't re- 
member. 

* ■* * 

Q. And he also said at that time that the com- 
pany couldn't give any raises because to do so would 
be to commit an unfair labor practice, didn't he? 

A. Well, he said that they couldn't do that un- 
less they asked the union to do so. 

Q. All right. But he did say it? 

A. He did say it, yes, sir. 

Q. And he also told you that he couldn't make 
any changes in the working conditions for the same 
reason? A. That is right, sir. 

Q. And the reason was that the union had then 
pending this Labor Board case and that it, the com- 
pany, didn't want to commit any unfair labor prac- 
tice. He said that, didn't he? [158] 

A. I believe he did say that, sir. 



184 National Labor Relations Board 

(Testimony of Lee E. Fitzhugh.) 

Q. And he said that because they bought the cars 
in California and sold the cars in California? 

A. Yes, he said something about that, 

Q. And he also said that he had some doubts 
about the applicability of the National Labor Rela- 
tions Act to the Howell Chevrolet Company for that 
reason, didn't he? A. I believe so, sir. 

Q. And he said that they had raised that point 
before the Board in the hearing, didn't he? 

A. Yes, sir. [159] 



Q. Now, in connection with this question of 
jurisdiction he discussed with you the methods that 
the company could take in order to test the question 
of jurisdiction over the Howell Chevrolet Company, 
didn't he? 

A. I don't remember, sir, whether he stated that 
or not. 

Q. Do you remember him saying anything about 
an appeal to the court? 

A. Yes. He said something about an appeal to 
the court. 

Q. That is right. And he told you that this par- 
ticular case, because of the question of jurisdiction, 
would probably be tested in court. Isn't that right? 

A. I don't remember him saying that, sir. 

Q. Don't you remember him saying that the way 
that they would get the question to the test of the 
court would be — and the only way — that the com- 



vs. Hoivell Chevrolet Co., etc. 185 

(Testimony of Lee E. Fitzhugh.) 
pany would have to refuse to bargain? That way 
they could get themselves before the court for the 
review of the question of jurisdiction? [160] 

A. I believe he said something to that effect, sir. 

Q. He said that. All right. 

Mr. Potruch did say that he didn't feel that there 
was anything between the company and the em- 
ployees that couldn't be handled without govern- 
ment intervention, didn't he? A. Yes, sir. 

Q. Now, he also told you in connection with this 
court procedure that if the union won the election 
the company could abide by that or else take it and 
contest it in court, didn't he? A. Yes, sir. 

Q. He said he couldn't fire anybody because of 
the pendency of this case, didn't he? 

A. Yes, sir. 

Q. And he said that nobody would be fired be- 
cause of it, didn't he? 

A. I don't remember whether he made that 
statement or not, He might have. I don't remember. 

Q. Do you remember he said if he did fire any- 
body the union would file unfair labor practice 
charges? You remember that, don't you? 

A. Yes, sir. 

Q. That is right. He told you you had a right 
to join the union if you wanted to, and it was none 
of the employer's business? [161] 

A. Yes, sir. 

Q. And an employer had no more right to tel] 
you not to join the union than he had no right to 



186 National Labor Relations Board 

(Testimony of Lee E. Fitzhugh.) 

tell you not to join the Elks or the Masons or any 

fraternity you liked to join'? A. Yes, sir. 



Q. Do you remember him telling you that there 
was a type of strike where the union would call a 
strike in order to compel the employer to sign a 
contract? Do you remember him saying something 
like that? 

A. I don't remember. It seems he said some- 
thing about strikes, but I don't remember just 
exactly what he said. 

Q. Do you remember that he told you that in 
a certain type of strike the employees could be re- 
placed by the company without the requirement of 
taking the strikers back? Do you remember him 
saying something about that? [162] 

A. I don't think — I don't know, sir. But he 
stated Howell Chevrolet wouldn't hire them back. 

Q. If they went out on an economic strike, is 
that the way he put it? 

A. He might have called it an economic strike. 
I don't remember. 

Q. Now, you are sure that he said they wouldn't 
hire them back? A. Yes, sir. 

Q. He also said that there were certain types of 
strikes which would be caused by unfair labor prac- 
tices. Do you remember that? 

A. I don't remember exactly his words or what 
he did state about that. 

Q. And he said in that type of a strike that the 



vs. Hotvell Chevrolet Co., etc. 187 

(Testimony of Lee E. Fitzhugh.) 

employer had to take the people back and probably 

had to pay them back pay, didn't he? 

A. Yes, I believe he did say something about 
that. He mentioned that. 

Q. And he also gave you his opinion with respect 
to the need of the union out there, didn't he? 

A. Well, he stated that he didn't think they 
needed a union there. 

Q. That is right. He said he thought first you 
ought to take your squawk up to the boss, and then 
if you didn't get [163] it satisfactorily settled you 
ought to take him out and hang him, or words to 
that effect? 

A. Words to that effect, yes, sir. 

Q. And he also said that he thought the com- 
pany shouldn't be unionized until after the boss had 
had a chance to straighten out the beefs, didn't he? 

A. Yes, sir. 

Q. In Mr. Potruch's talk to you did he say any- 
thing would happen to your employment relations 
if you voted for the union? A. No, sir. 

Q. Did he ask anybody to withdraw from the 
union membership? A. No, sir. 

Q. Did he ask anyone if they had been ap- 
proached by the union? 

A. I don't think so. [164] 

* * * 

Q. Now, when you cast your ballot, it was a 
secret ballot, was it not? A. Yes, sir. 

Q. You were handed the ballot by a Board 
agent? A. Yes, sir. 



188 National Labor Relations Board 

(Testimony of Lee E. Fitzhugh.) 

Q. It never got out of your possession 

Mr. Nutter: Mr. Examiner, I object to this line 
of testimony. 

Trial Examiner Myers: Overruled. 

Q. (By Mr. Nicoson) : It never got out of your 
possession until after you had marked it in a secret 
booth, is that right? A. Yes. 

Q. And you deposited it in the ballot box with 
your own hands'? A. Yes, sir. 

Q. No one was in the booth while you were in 
there to mark it? A. No, sir. 

Mr. Nicoson: That's all. 

Trial Examiner Myers: Any redirect? 

Redirect Examination 
By Mr. Nutter : 

Q. Mr. Fitzhugh, you testified on cross-exami- 
nation that Mr. Herrick had another man come in 
and [165] help him after Mr. Leonard was dis- 
charged. Did you see Mr. Herrick and this other 
man working while you were employed there? 

A. Yes, sir.' 

Q. And what was this other man doing? 

A. He was helping on the frame machine, sir. 

Q. And what was Herrick doing? 

A. He was — oh, he would help him at times, and 
other times he was working on the front end. 

Q. Herrick was working on the front end? 

A. That is right. 

Q. And this individual that was assisting Her- 



vs. Howell Chevrolet Co., etc. 189 

(Testimony of Lee E. Fitzhugh.) 

rick was working on the frame machine, is that 

right? A. Yes, sir. 



Q. (By Mr. Skagen) : Mr. Fitzhugh, you testi- 
fied on cross-examination that you wore a union 
button. What kind of button did you wear? 

A. It is an IAM. 

Q. Do you know what kind of a button Mr. 
Leonard wore in the shop? 

A. He wore a steward's button. 

Q. Was that different from the other? [166] 

A. Yes, sir. 

Q. Do you — now, Mr. Fitzhugh, you stated on 
cross-examination, also, that certain machinery was 
moved outside the building from Mr. Leonard's 
stall, did you not? A. Yes, sir. 

Q. What was that? 

A. It was a brake lathe. 

Q. Brake lathe? A. Yes, sir. [167] 

•* * •* 

CLAUDE LEONARD 

a witness called by and on behalf of the General 
Counsel, having been previously duly sworn, re- 
sumed the stand and testified further as follows : 

Cross-Examination 
(Continued) 

By Mr. Nicoson: [168] 

Q. Now, on this occasion that you saw brake 



190 National Labor Relations Board 

(Testimony of Claude Leonard.) 
work being done on the lube rack, I believe your 
testimony is that that is the only time that you saw 
it done there. 

A. What do you mean the only time? 

Q. Well, you saw Tiny Reeve making an ad- 
justment on March 23, and then on March 24 you 
said somebody was bleeding the line? 

A. That is the dates that I recall. 

Q. I see. All right. You did see it done on other 
occasions? A. On other occasions. 

Q. And over what period of time? 

A. More so in February than March. 

Q. But you did see it prior to February and 
March, didn't you? 

A. I can't say that, because I didn't check. 

Q. You didn't check. So, so far as your knowl- 
edge is concerned you don't know whether they 
were doing brake adjustments on the lube rack all 
along or not, do you? [170] 

A. I know that. I was doing more of them be- 
fore that. 

Mr. Mcoson: Mr. Examiner, may I have an an- 
swer to my question? 

Trial Examiner Myers: Strike out the answer. 

Will the reporter please read the question to the 
witness. 

(Question read.) 

The Witness: I don't know. 

Q. (By Mr. Nicoson) : Now, with respect to the 



vs. Howell Chevrolet Co., etc. 191 

(Testimony of Claude Leonard.) 

doing of stop-light switch work on the tune up, 

when did you make a check on that ! 

A. When I noticed him doing it was in February. 

Q. You saw him only doing it once? 

A. Two different occasions. 

Q. Both in February? 

A. I believe both in February. 

Q. You made no check prior to that time? 

A. No. 

Q. So prior to that time you don't know whether 
this tune-up man had been doing that type of work 
all along or not, do you? 

A. He had been putting in electric — tending to 
electric stop-light switches. 

Q. You knew about that ? 

A. I knew about that. [171] 

Q. Do you know of your own knowledge whether 
he had also been doing the other type of stop- 
switch work ? A. No, I do not. [172] 



GEORGE ALBERT SMITH 
a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined as 

and testified as follows: 

* * * 

Direct Examination 

By Mr. Nutter : 

* # * 

Q. (By Mr. Nutter) : And were you formerly 
employed at Howell Chevrolet? 



192 National Labor Relations Board 

(Testimony of George Albert Smith.) 

A. Yes. [178] 

Q. When was that? 

A. From about March in 1950 and about six 

months following. 

* * * 

Q. (By Mr. Nutter) : Mr. Smith, I show you 
a card, an authorization card of the IAM and ask 
you if you can identify that signature. 

A. I can. It is my signature. 

Q. Is that your signature? A. Yes, sir. 

Q. Did you fill it out? A. Yes. 

Mr. Nutter: I now offer General Counsel's No. 
19 in evidence. 

Trial Examiner Myers: When did you fill it 
out? 

Mr. Nutter : The date is on the card. 

Trial Examiner Myers: What? 

Mr. Nutter: The date is on the card. I asked 
him if he filled it out. I assume he filled it out on 
the date that [179] it bears. 

Q. (By Mr. Nicoson) : Did you put that date in 
there ? A. That is right. 

Q. Is that the date marked there? 

A. That is right. 



(Thereupon the document above referred to 
was marked General Counsel's Exhibit No. 19 
and was received in evidence.) 



vs. Hotvell Chevrolet Co., etc. 193 

(Testimony of George Albert Smith.) 

GENERAL COUNSEL'S EXHIBIT No. 19 

Authorization for Representation under the 
National Labor Relations Act 

I A of M 

I, the undersigned, employee of Howell Chev. Co. ; 
Address, 1000 Brand Blvd., Glendale, Calif. 

hereby authorize the Machinists' District Lodge 
727 to represent me in negotiations for better wages, 
hours and other conditions of employment in ac- 
cordance with the provisions of the National Labor 
Relations Act. Information on this card is held 
in strict confidence. 

This does not obligate me financially in any way. 

/s/ GEORGE A. SMITH. 

(Signature.) 

GEORGE A. SMITH. 
(Print Name.) 

Address: 1812 Brand Blvd. 
Kind of Work : Body & fender. 
Date: April 24, 1950. 
City : Glendale. 

Phone : 

Dept: 

Admitted November 1, 1950. 



Q. (By Mr. Nutter) : Now, Mr. Smith, what 
were your duties at Howell Chevrolet? 
A. Body and fender work. 



194 National Labor Relations Board 

(Testimony of George Albert Smith.) 

Q. Did you have a foreman there? 

A. Yes. 

Q. Who was that man? A. Prank Ogen. 

Q. Now, did you have any discussion with Mr. 
Ogen about the union at any time while you wen 1 
at Howell Chevrolet? 

A. Oh, several times he would come out and 
ask me what I [180] was going to do about the 
union, or whether I was in the union, or things 
like that. 

Q. Now, can you tell us when this was and 
where it was? 

A. It probably took place three or four — about 
three weeks before the election on June 1st. 

Trial Examiner Myers: What do you mean 
"probably"? Do you mean about? 

The Witness: About. 

Q. (By Mr. Nutter) : And where abouts was 
this? A. Out in the yard. 

Trial Examiner Myers : What yard ? 

The Witness : Where the cars are parked. 

Trial Examiner Myers : Howell Chevrolet ? 

The Witness: Yes. 

Q. (By Mr. Nutter) : What time of day was 
this? Just tell us one occasion. What time of day 
was this that Mr. Ogen spoke to you? 

A. Probably around 10:30, 11:00 o'clock in the 
morning. 

Q. Now, who was present? 

A. Nobody but myself. 



vs. Howell Chevrolet Co., etc. 195 

(Testimony of George Albert Smith.) 

Q. Now will you tell us what was said in this 
conversation. 

A. Well, he saw me talking to George Kirkland 
and he asked me, "Has George got you to join the 
union yet?" 

Q. What did you say? 

A. I told him, "I have always been a union 
man." [181] 

Q. Was there anything else to the conversation? 

A. No, I don't believe so. 

Q. Did you talk on any other occasion to Mr. 
Ogen about the union? 

A. Oh, sometimes he would come up and make 
a pass at me in just a kidding way — I don't know 
if he meant anything about it, and dropped it — 
"How you doing about the union," and something 
like that. Then forget about it and walk off. 

Q. When was this? 

A. Oh, on several occasions after the previous 
time I mentioned just now. 

Q. I think we stipulated in the record that the 
election was held on June 1, 1950. 

A. That is right. [182] 



Q. You worked in the body shop with Mr. Ogen, 
did you, or under him? A. Yes. 

Q. Now, can you remember in substance what he 
said to you on one of these occasions? 

A. Well, on one occasion he told me that any 
man that joined the union would be fired. 



196 National Labor Relations Board 

(Testimony of George Albert Smith.) 

Q. Was there anything else said on that oc- 
casion % 

A. He never did work in a union shop ; he never 
would. He wouldn't have any union men working 
under him. 

Q. You say this took place just before the elec- 
tion? A. Yes. 

* * * 

Q. Did you ever talk to him about the union, 
or did he talk to you about the union? [183] 

A. Only on one occasion. I think we went off 
the premises at the time. 

Q. And will you tell us what that was, where 
it took place and who was present. 

A. Ken Herrick was present and it was at a 
place known as the Playhouse. 

Q. The Playhouse? A. Yes. 

Q. Is that where they put on plays? 

A. No, it is a bar. 

Q. Where abouts is that? 

A. I don't know. It is on one of the streets over 
in Glendale. 

Q. When did this take place? 

A. That was just prior to the election or to the 
vote. 

Q. How soon prior to the election ? 

A. I don't imagine over two weeks at the most. 

Q. Now, will you tell us what took place there 
at the Playhouse Cafe, or bar, is it? 

A. Well, Mr. Bordeau and Ken Herrick were 4 



vs. Howell Chevrolet Co., etc. 197 

(Testimony of George Albert Smith.) 
talking together and were talking about the union. 
Mr. Bordeau said that if the union went in that 
Howell would shut his doors. 

Q. Did you say anything? 

A. I wasn't interested in that conversation at all. 

Q. Was there anything else to the [184] con- 
versation? 

A. Oh, personal business of my own, yes. 
Nothing concerning the vote or the union, or any- 
thing like that. 

Q. Were you seated with Mr. Bordeau? 

A. I was standing right back of him. 

Q. Standing beside him? A. Yes. 

Q. And where was Mr. Herrick? 

A. He was standing on the other side of him. 

Trial Examiner Myers: The three of you were 
standing at the bar? 

The Witness: No. Mr. Bordeau was seated on a 
stool. The other two of us were standing right 
behind him. 

Trial Examiner Myers : At the bar ? 

The Witness: Yes. 

Q. (By Mr. Nutter) : Was there anything else 
to that conversation about the union? 

A. No, not that I can remember. In fact, I didn't 
pay too much attention to that conversation. 

* * * 

Q. Did Mr. Howell ever talk to you about the 
union at any time you were employed there? 
A. Just before the election day, yes. 



198 National Labor Relations Board 

(Testimony of George Albert Smith.) 

Q. How long before ? 

A. The vote; probably two or three or four 
days. [185] 

Q. And where was that? 

A. In the body shop. 

Q. What were you doing in the body shop 1 

A. Working bodies and doing fender work. 

Q. And what time of day was this? 

A. As near as I remember it was in the fore- 
noon — probably 11:00 o'clock. 

Q. Was there anybody else present there with 
you? 

A. Several men working there. They wasn't right 
near me. 

Q. Pardon? 

A. They wasn't standing right near me, but they 
was working in the shop. 

Q. Now, will you tell us what the conversation 
was and what took place. 

A. Well, Mr. Howell told me that he didn't want 
the National Labor Board in there to tell him how 
to run his business. 

And that if the union was voted out, they won the 
vote, they was going to 50 per cent the first of the 
month, which would be June the 1st. 

Q. Said there was going to be what? 

A. They would go to 50 per cent. That would be 
on June 1st. 

Q. You mean commission rates? 

A. Commission rates. 



vs. Howell Chevrolet Co., etc. 199 

(Testimony of George Albert Smith.) 

Q. Is that what you mean by going to 50 per 
cent? [186] A. Eight. 

Trial Examiner Myers : What were they at that 
time? 

The Witness: 40 per cent. 

Q. (By Mr. Nutter) : Was there anything else 
said in the conversation? 

A. Oh, only talking about interstate commerce, 

having to have so much interstate commerce, and 

one thing and another before the Labor Board 

could come in. Something to that effect. That's 

something I never could understand. 

* * * 

Q. Now, did you attend any sort of a banquet 
following the election? A. Yes. 

Q. Where was that? 

A. The Mayfair Hotel. 

Q. Pardon? 

A. The Mayfair Hotel in Glendale. 

Q. When was that? 

A. That was probably a week or ten days after 
the election. I don't remember just the date. 

Q. Who was present at this banquet? [187] 

A. Well, all the fellows in the body shop, me- 
chanics, tune-up men, lube rack, Mr. Howell, Mr. 
Bordeau, and Frank Ogen and Frank Wergen. 

Q. Who? 

A. Frank Wergen. 

Q. With all the production and maintenance em- 
ployees, was it, or was it all the employees of 
Howell? 



200 National Labor Relations Board 

(Testimony of George Albert Smith.) 
A. I mean, then, it was all the men employees 

of the shop. 

* * * 

Q. (By Mr. Nutter) : Now, were there any 
speeches made at this banquet ? 

A. Oh, Mr. Howell made a little speech, yes, 
something about it wasn't just an accident the 
meeting come up just at the time. He went on to 
tell that the body shop was going to 50 per cent due 
to keen competition in the business. Mechanics, 
front end and brake men was going to 45 per [188] 

cent. 

■* # # 

Q. Did you, while you were employed at Howell 
Chevrolet, hear any speech made by Mr. Potruch? 

A. Yes. 

Q. And when was that? 

A. Oh, the first one was shortly after I went 
there. I didn't pay too much attention to that 
speech because I wasn't interested in the union at 
the time. I didn't pay too much attention to it. 
That was when they were all called in as a group 

on the service floor. 

* * * 

Q. Did you hear another speech by Mr. [189] 
Potruch? A. Yes. 

Q. When was that? 

A. That was possibly a week or ten days before 
the vote on June 1st. 

Q. Where did that take place ? 

A. That took place in Mr. Bordeau's office. 



vs. Hoivell Chevrolet Co., etc. 201 

(Testimony of George Albert Smith.) 

Q. Who was present? 

A. Frank Ogen, the two grease men, and let's 
see, one, two, three — three or four body men and 
Mr. Bordeau. 

Trial Examiner Myers: And you. 

The Witness: Right. 

Q. (By Mr. Nutter) : Now, will you tell us 
what Mr. Potruch said at that meeting. 

A. Well, he had a sample ballot there at the 

time. At that time he told us how we could vote, 

how to mark the ballots one way or the other way, 

and went on to explain about that the union would 

never do us any good. He brought up an example 

of Baldwin Chevrolet where they hired gangsters, 

or one thing or another like that, to come in there 

and break up a strike. He told us that there would 

be a new deal after the first of the month, but 

that at that time he could not make a statement 

as to what it would be; but that there would be 

a new deal. [190] 

* * * 

Q. Now, you previously told us how Mr. Howell 
spoke to you in the body shop. 

A. That is right. 

Q. Was there anybody, another employee 
around ? 

A. There was another man, but he was about 
two cars away and he is hard of hearing. He is 
deaf and dumb, as a matter [191] of fact. 

Q. Who is that? 



202 National Labor Relations Board 

(Testimony of George Albert Smith.) 

A. Mr. Daly. We also refer to him as the old 
man. 

Q. I see. Well, when did you first see Mr. Howell 
that time? 

A. Talking to Mr. Daly. 

Q. And then what happened after you saw him 
talking to Mr. Daly? 

A. He walked over to where I was working. 

Trial Examiner Myers : Who walked over ? 

The Witness: Mr. Howell. He walked over to 
me and said he was just talking to the old man, 
which is Mr. Daly. 

Q. (By Mr. Nutter) : And what did he say? 

A. He started telling me about what they were 
going to do after the first of the month if the 
union wasn't voted in. 

Q. Did Mr. Howell say anything else ? 

A. Talking about strikes. Said that if the union 
did come in there would be a strike. And I told 
him at the time that I didn't like strikes, they were 
costly both ways, employees and employer. 

Q. Was anything else said? 

A. No, I don't believe so. 

* •* * 

Trial Examiner Myers: You say that he said 
what he would do after the first. What did he [192] 
say? 

The Witness : That they would go to 50 per cent 
commission instead of 40. [193] 



vs. Howell Chevrolet Co., etc. 203 

(Testimony of George Albert Smith.) 

Cross-Examination 
By Mr. Nicoson: 

Q. Now, these conversations that you had with 
Ogen about these unions. You say he was kidding, 
and you understood he was kidding, didn't you? 

A. One time he came out and point blank asked 
me, after he saw me talking to George Kirkland on 
the lot, "Has George got you to join the union 
yet?" And I told him I had always been a union 
man. 

Q. And you and Mr. Ogen had kidded back and 
forth about the union, hadn't you? 

A. After that several times. 

Q. Yes. That is right. And you understood it 
was kidding on the part of Mr. Ogen and on the 
part of yourself. [195] 

A. Might have been kidding. 

Q. Well, that is the way you understood it, 
wasn't it? A. Could have been. [196] 

* # * 

PAUL ARNOLD 
a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined and 

testified as follows: 

* * * 

Direct Examination 



204 National Labor Relations Board 

(Testimony of Paul Arnold.) 
By Mr. Nutter: 

Q. Were you formerly employed at Howell 
Chevrolet? A. Yes. 

Q. When was that? 

A. June, in 1949, is when I first went to work. 

Q. How long were you employed at Howell 
Chevrolet 1 

A. I quit there in February of '50. [200] 

* * * 

Q. What were your duties there at Howell? 

A. Metal man. 

Q. Metal man? A. Body and fender man. 

Q. You worked in the body shop? 

A. Yes. 

* *■ •* 

Q. (By Mr. Nutter) : Mr. Arnold, I show you 
General Counsel's Exhibit 20, marked for identifi- 
cation, and ask you is that your signature ? 

A. Yes. 

Q. Did you fill out that card? A. Yes. 

Q. Did you fill out the date here ? A. Yes. 

Q. Is that January 31, 1950? [201] 

A. Yes. 

Q. Is that when you filled it out ? A. Yes. 

* * * 

(The document heretofore marked General 
Counsel's Exhibit No. 20 for identification was 
received in evidence.) 



vs. Howell Chevrolet Co., etc. 205 

(Testimony of Paul Arnold.) 

GENERAL COUNSEL'S EXHIBIT No. 20 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No. 1000 

Home Address— St. : 10262 Kewen. 
City: Pacoima. 
Tel. No.: 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 

Date: Jan. 31, 1950. 

/s/ PAUL W. ARNOLD. 

(Signature of Employee.) 

PAUL WHITTIER ARNOLD. 

(Please Print Name.) 

Admitted November 1, 1950. 



206 National Labor Relations Board 

(Testimony of Paul Arnold.) 

Q. (By Mr. Nutter) : Did I ask you who your 
foreman was when you worked out at Howell? 

A. Yes. 

Q. Mr. Ogen, was it? A. Yes. 

Q. Did you ever talk with Mr. Ogen about the 
union? 

A. Yes, one time I did, right after I filled a 
card out. 

Q. How long was that after you filled the card 
out? 

A. Well, I think it was maybe a day or two 
later. I am not sure exactly. 

Q. And where did this conversation take [202] 
place ? A. In the body shop. 

Q. During working hours, w T as it? 

A. Yes. 

Q. And about what time of day was it? 

A. Oh, I'd say sometime in the morning, just 
a little before noon, maybe. 

Q. Was anybody else present? 

A. Well, no one was present when I had the 
conversation. 

Q. Now, will you tell us what the conversation 

was? 

#■ * # 

A. Well, I asked him what he thought about the 
union, and he told me that — I asked him what he 
thought about the guys going in, and he said they 
better watch out for their jobs, because Howell said 
to fire them all that are wearing buttons. 



vs. Howell Chevrolet Co., etc. 207 

(Testimony of Paul Arnold.) 

Q. (By Mr. Nutter) : Did you have any dis- 
cussion about buttons in this conversation? [203] 

A. Just what I said. 

Q. Were you wearing a union button? 

A. No, I wasn't. 

Q. Did you see anybody wearing a union button 
there in the shop? A. Yes, there was a few. 

Q. Who was that? 

A. I think — I don't know his name — Claude, I 
think is his name. 

Trial Examiner Myers: Do you see him in the 
hearing room? 

The Witness : Yes, he is back there. 

Trial Examiner Myers: Whom do you mean? 
Will you stand up, please? Is that the man you 
mean? 

The Witness: Yes, and Rose was wearing one 
for a while. 

Trial Examiner Myers : Is that Claude Leonard 
you mean? 

The Witness: Yes. 

Mr. Nicoson: Who else was wearing one? 

The Witness: Rose. His last name was Rose. 
He worked there with me, but I never did know 
his first name. 

Q. (By Mr. Nutter) : Was there any thing- 
more to this conversation you had with Mr. Hogan ? 

A. That was about it. I didn't ask him no more 
about it or say anything at all. [204] 



208 National Labor Relations Board 

(Testimony of Paul Arnold.) 

Cross-Examination 
By Mr. Mcoson: 

Q. You went to Hogan with these questions, 
didn't you? 

A. He came by the shop, and he had — he was 
back there and [205] I just asked him. 

Q. All right. In other words, you started the 
conversation? A. Yes, I started it. 

Q. He didn't? A. No. 

Q. And you asked him for his opinion? 

A. Yes. 

Q. And he gave it to you? A. Yes. [206] 

* # # 

WILLIAM FRANCIS HANSEN 

a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined and 

testified as follows: 

* * * 

Direct Examination 

* ■* ■* 

By Mr. Nutter: 

Q. And were you employed at Howell Chevrolet? 

A. Yes, I was. 

Q. When was that? 

A. Around the first part of February, if I recol- 
lect. 

Q. You first went to work there during the first 
part of February? A. Yes, around there. 

Q. 1950, was it? A. Yes. 



vs. Howell Chevrolet Co., etc. 209 

(Testimony of William Francis Hansen.) 

Q. How long did you work there? 

A. Oh, just about six months, or something like 
that. 

Q. And what were you duties at Howell Chev- 
rolet? A. Washing and polishing cars. [207] 

* * # 

Q. Did Mr. Howell ever say anything to you 
about the union while you were employed at Howell 
Chevrolet? A. Well, he talked to me. 

* * * 

Q. What did he say to you? When was that, 
now? A. I voted in favor of the plant. 

Mr. Mcoson : That answer is not responsive, and 
I move that it be stricken. 

Trial Examiner Myers: The question is, when 
did he speak to you? 

Strike the answer. 

The Witness: I don't know the date. [209] 

Q. (By Mr. Nutter) : Well, approximately — 
did you vote in the election on June 1, 1950? 

A. Yes, I did. 

Q. Can you place the date in relation to the 
election? A. I can't remember the date. 

Q. Was it before or after the election? 

A. Oh, before. 

Q. How long before? 

A. A few days, I imagine, as close as I can re- 
member. 

Q. And whereabouts did you have this conver- 
sation with Mr. Howell? 



210 National Labor Relations Board 

(Testimony of William Francis Hansen.) 

A. Well, right next to where we washed the 
cars, where they polish them. 

Q. And about what time of day was it? 

A. Oh, in the morning, as I remember. 

Q. What were you doing? 

A. Putting on my boots. 

Q. Then what happened? 

A. That is when he came and talked to me. 

Q. Mr. Howell talked to you? A. Yes. 

Q. What did he say? 

Mr. Mcoson: No proper foundation has been 
laid. 

Trial Examiner Myers: Who else was there? 

The Witness : Just myself. [210] 

Trial Examiner Myers: Just you and Mr. 
Howell? 

The Witness: Yes, sir. 

Trial Examiner Myers: The objection is over- 
ruled. 

Q. (By Mr. Nutter) : What did he say? 

A. He just asked me if I would vote in favor of 
the plant, and I said, "I will do my best." 



Q. Did you attend a banquet shortly after the 
election for the employees of Howell Chevrolet? 
A. Yes, I did. 

Q. Did Mr. Howell speak at that banquet? 
A. He made a little speech. 
Q. Can you tell us what he said? 



vs. Howell Chevrolet Co., etc. 21l 

(Testimony of William Francis Hansen.) 

A. I can't remember everything. 

Q. Just what you can recall. 

A. Well, something about a raise — he didn't say 

how much, but we would get a raise. We would 

have to wait a few days or a month or 30 days 

before we short-timers would get one, and that's 

about all. [211] 

* * * 

Q. Now, coming back to this meeting that you 
had with Mr. Howell at the wash rack when you 
were putting on your boots, do you further recall 
anything else that was said by Mr. Howell? 

A. No, I don't. 

Q. Do you mean you can't remember anything 
else that he said? 

A. I have forgotten everything. 

Q. Pardon? 

A. I have forgotten all that stuff. 

Q. Do you remember Mr. Howell saying any- 
thing to you about a raise at this 

A. At the banquet, yes. [212] 



Q. (By Mr. Nutter) : You don't recall any- 
thing about that? 

A. No, I have forgot it all. [213] 



Q. You made a statement and you swore to it, 

and you read it over, is that right? A. Yes. 

Q. Now, I direct your attention to the first page 



212 National Labor Relations Board 

(Testimony of William Francis Hansen.) 
of the document, to the last paragraph, and ask 
you to read that, particularly where it starts, "He 
said," and read that over. That is six lines from 
the bottom. 

Have you read it over? A. Yes. 

Q. Now, after reading that over, does that re- 
fresh your memory as to what Mr. Howell said to 
you when you were putting on your boots on that 
morning, prior to the election? A. Yes. 

Q. What was it? 

A. He just asked me if I would vote the way 
of the company, and he would see that we got a 
raise in time ; so I did. 

Q. Was there anything else to the conversation? 

A. No. [214] 

* ■* * 

Q. (By Mr. Nutter) : Do you know Mr. Bor- 
deau? A. Yes, I do. 

Q. Was he the service manager at Howell? 

A. Yes. 

Q. Did you ever talk to Mr. Bordeau about the 
union? A. No, I never did. 

Q. Did Mr. Bordeau ever speak to you about the 
union? A. Not that I can recall. [215] 



vs. Howell Chevrolet Co., etc. 213 

D. A. GORDON 

a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined and 
testified as follows: 



Direct Examination 
By Mr. Nutter: 

Q. Mr. Gordon, what is your occupation? 

A. I am an organizer for the District Lodge 727, 
International Association of Machinists. 

Q. How long have you been engaged as an 
organizer for 727? [216] 

A. Approximately a year and three months. 

* *■ * 

Mr. Nutter: I now offer General Counsel's Ex- 
hibit 23 in evidence. 

Mr. Nicoson: No objections. 

Mr. Skagen: No objections. 

Trial Examiner Myers: Any question about the 
letter being received? 

Mr. Nicoson : No question raised about the foun- 
dation. We stipulate we received the original. 

Trial Examiner Myers : When did you receive it? 

Mr. Potruch: Whenever the return receipt says 
on there, [217] 

Trial Examiner Myers: It says February 1. 

Mr. Potruch: That's all right. 

Trial Examiner Myers: Is that when you re- 
ceived it? 

Mr. Nicoson: So stipulated. 



214 National Labor Relations Board 

(Testimony of D. A. Gordon.) 

(The document heretofore marked General 
Counsel's Exhibit No. 23 for identification was 
received in evidence.) 

GENERAL COUNSEL'S EXHIBIT No. 23 

Return Receipt 
Received from the Postmaster the Registered or 
Insured Article, the original number of which ap- 
pears on the face of this Card. 

1. Howell Chevrolet Co. 

(Signature or name of addressee) 

2. E. Casselman. 

(Signature of addressee's agent — Agent 
should enter addressee's name on line 
One above) 

Date of delivery : 2-1-50. 

January 31, 1950. 
Howell Chevrolet Company, 
1000 S. Brand Blvd., 
Glendale, California. 

Attention: Mr. Jackson Howell. 

Dear Mr. Howell : 

Please be advised that the International Associa- 
tion of Machinists, District Lodge 727, represents 
a majority of your mechanics, lube men, parts men, 
body and fender men, painters, service mechanics, 
maintenance men and working foremen employed 
at your shop located at 1000 S. Brand Blvd., Glen- 
dale, California. 



vs. Howell Chevrolet Co., etc. 215 

(Testimony of D. A. Gordon.) 

Therefore, we request recognition for the pur- 
pose of representing the employees in the above- 
described bargaining unit in regard to hours, wages, 
working conditions and other conditions of employ- 
ment. 

We desire a meeting for the purpose of nego- 
tiating a collective bargaining agreement at your 
earliest possible convenience. Upon failure to grant 
such recognition and conference, petitions for Cer- 
tification of Representation will be filed with the 
National Labor Relations Board. 
Very truly yours, 

D. A. GORDON, 

Organizer, District 727, 1.A.M. 
DAG:sl 
cc: R. M. Brown, G.V.P. 

L. E. Poesnecker, G.L.R. 

John Snider, President, District 727. 

Admitted November 1, 1950. 



Trial Examiner Myers: While we are at it, Mr. 
Nicoson, I notice in your answer you deny that the 
International Association of Machinists, District 
Lodge 727, is a labor organization within the mean- 
ing of the Act. Do you press your denial? 

Mr. Nicoson: Oh, I think we might stipulate 
that it approximates a labor organization within 
the meaning of the Act. 

Trial Examiner Myers : Very well. 



216 National Labor Relations Board 

(Testimony of D. A. Gordon.) 

Mr. Nicoson: We stipulate that the union is a 
labor organization within the meaning of the [218] 

Act. 

* * * 

Trial Examiner Myers: Now, was any answer 
made to either one of these letters, Mr. Nicoson? 

Mr. Mcoson: General Counsel's 24- A is an an- 
swer to 24. 

Trial Examiner Myers: Oh, I see. But no an- 
swer was made to General Counsel's Exhibit No. 
23; is that right? 

Mr. Nicoson: That is correct. [220] 



(The document heretofore marked General 
Counsel's Exhibit No. 31 for identification was 
received in evidence.) 



GENERAL COUNSEL'S EXHIBIT No. 31 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No 

Home Address— St.: 3032 Sierra St. 

City: Los Angeles. 

Tel. No.: CA 19827. 

hereby authorize the International Association of 

Machinists to represent me as my exclusive Collec- 



vs. Hotvell Chevrolet Co., etc. 217 

(Testimony of D. A. Gordon.) 

tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me finanically in any way. 

Date : Jan. 30, 1950. 

/&/ PHILIP CABALLERO. 

(Signature of Employee.) 

PHILIP CABALLERO. 

(Please Print Name.) 

Admitted November 1, 1950. 



EDWARD M. SKAGEN 
a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined and 

testified as follows: 

■* * * 

Direct Examination 
By Mr. Nutter: 

Q. Mr. Skagen, what is your occupation? 
A. I am a Grand Lodge representative of the 
International Association of Machinists. [236] 
Q. And what are your duties? 



218 National Labor Relations Board 

(Testimony of Edward M. Skagen.) 

A. My duties are the preparation, handling of 
cases before the National Labor Relations Board, 
and other matters pertaining to the official duties 
of representatives of the International Association 
of Machinists. 

Q. Do you engage in organizing work in the 
union % 

A. I attend various organizational meetings, and 
I write organizational literature on occasions. 

Q. And have you attended organizational meet- 
ings in District Lodge 727 ? A. I have. [237] 

* * # 

(The document heretofore marked General 
Counsel's Exhibit No. 32 for identification was 
received in evidence.) [239] 

GENERAL COUNSEL'S EXHIBIT No. 32 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No 

Home Address— St. : 1316 Mohawk St. 
City: Los Angeles. 
Tel. No.: DU 40595. 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 



vs. Howell Chevrolet Co., etc. 219 

(Testimony of Edward M. Skagen.) 

in accordance with the provisions of the National 

Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 

Date: Jan. 30, 1950. 

/s/ KENNETH I. HERRICK. 

(Signature of Employee.) 

KENNETH I. HERRICK. 
(Please Print Name.) 

Admitted November 1, 1950. 



(The document heretofore marked General 
CounsePs Exhibit No. 26 for identification was 
received in evidence.) [240] 

GENERAL COUNSEL'S EXHIBIT No. 26 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No 

Home Address— St.: 311 E. Colorado St. 
City: Glendale. 
Tel. No. : 

hereby authorize the International Association of 



220 National Labor Relations Board 

Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 

Date: Jan. 30, 1950. 

/s/ BOYCE E. SKELTON. 

(Signature of Employee.) 

BOYCE E. SKELTON. 
(Please Print Name.) 

Admitted November 1, 1950. 



CLAUDE LEONARD 

a witness recalled by and on behalf of the General 
Counsel, having been previously duly sworn, was 
examined and testified further as follows : 

Direct Examination 
By Mr. Nutter: [246] 

* ■* * 

Q. Mr. Leonard, I show you an authorization 
card that is marked General Counsel's 34 for identi- 
fication, and ask you if you can identify that? 

A. Yes, sir. 

Q. What is that? 



vs. Howell Chevrolet Co., etc. - 221 

(Testimony of Claude Leonard.) 

A. That is an authorization card signed by 
Henry Gobelman. That was February 1, I believe. 

Q. I notice there is no date on there, 

A. No. 

Q. Mr. Leonard. Now, can you tell me 

where this was signed and the circumstances'? 

A. The reason I recall it is that it was the day 

after I was over there and received the other 

fellow's. [247] 

* * * 

(The document heretofore marked General 
Counsel's Exhibit No. 34 for identification was 
received in evidence.) 

Q. (By Mr. Nutter): Now, Mr. Leonard, I 
have had marked for identification General Coun- 
sel's Exhibit No. 35. I show you this authorization 
card, and I ask you if you can identify that? 

A. Yes, that is an authorization card signed by 
Joseph F. Price. He was a mechanic working at 
Howell Chevrolet. His stall was next to mine. 

Q. And when did he sign this? 

A. January 30, 1950. 

Q. Did you see him sign this? I know this is 
printed down here. 

A. Yes, this is printed down here. 

Q. Did you see him print it? 

A. He printed it out. 

Q. I notice this card is filled out up here. Did 
you fill this out? 

A. I filled it out there. I remember the day. He 
was busy; his hands were all dirty, and I asked 



222 National Labor Relations Board 

(Testimony of Claude Leonard.) 

him about it, and he said, "Go ahead and fill it out, 

and I will sign it." [249] 

Q. What time of day was this'? 

A. In the morning. 



(The document heretofore marked General 
Counsel's Exhibit No. 35 for identification was 
received in evidence.) [250] 

GENERAL COUNSEL'S EXHIBIT No. 35 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 

employed at Glendale, Calif., Dept. No , Clock 

No , Shift No , Plant No 

Home Address— St. : 905% E. Chevy Chase. 
City: Glendale. 
Tel. No.: 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 



vs. Howell Chevrolet Co., etc. 223 

(Testimony of Claude Leonard.) 
Date: Jan. 30, 1950. 

M 

(Signature of Employee.) 

JOSEPH F. PEICE. 

(Please Print Name.) 

Admitted November 2, 1950. 



JOSEPH ROSE 
a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined and 
testified as follows: 



Direct Examination 
By Mr. Nutter : 

Q. Mr. Rose, were you employed at Howell 
Chevrolet? A. I was. 

Q. Can you tell us when that was ? 

A. Well, I don't remember the exact dates. 

Q. Approximately? 

A. But approximately four months, I should 
say. 

Q. In what year % 

A. Probably February was the time I left there, 
their employment. 

Q. Of what year, February of what yea]'? [252] 

A. '49. 



224 National Labor Relations Board 

(Testimony of Joseph Eose.) 

Q. 1949? 

A. Yes ; 1949, yes. It was this year. 

Q. This year is 1950. A. '48 and '49. 

Trial Examiner Myers : When did you leave ? 

Q. (By Mr. Nutter) : This year is 1950. 

A. Well, I would say approximately February 
of this year. 

Q. That is 1950. 

A. Yes, I got my dates crossed up. 

Q. What were your duties there ? 

A. I was metal mechanic. 

* *■ * 

Q. (By Mr. Nutter) : Mr. Rose, I show you this 
card marked General Counsel's Exhibit No. 36 for 
identification, and call your attention to the signa- 
ture there. Can you tell me what that is ? 

A. That is my signature; that is the card I 
signed with the union. 

Q. And did you fill out the card ? 

A. I did. 

Q. On what date did you fill it out ? 

A. On the date that is marked there. 

Q. January 31st? [253] A. January 31st. 

Q. 1950? A. 1950. 

Trial Examiner Myers: Did you sign it on that 
date? 

The Witness: I did. 

# ■* *• 

(The document heretofore marked General 
Counsel's Exhibit No. 36 for identification was 
received in evidence.) [254] 



vs. Howell Chevrolet Co., etc. 225 

(Testimony of Joseph Rose.) 

GENERAL COUNSEL'S EXHIBIT No. 36 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chev. Co., 
employed at Glendale, Calif., Dept. No. Mech., Clock 

No , Shift No , Plant No 

Home Address— St. : 2346 Flower PL 
City: Los Angeles. 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 

Date: Jan. 31, 1950. 

/s/ JOSEPH ROSE. 

(Signature of Employee.) 

JOSEPH ROSE. 

(Please Print Name.) 

Admitted November 2, 1950. 



226 National Labor Relations Board 

BOYCE SKELTON 
a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined and 
testified as follows : 



Direct Examination 
By Mr. Nutter : 

Q. Mr. Skelton, were you employed at the 
Howell Chevrolet? [256] 

Q. Are you employed there now? A. No. 

Q. When were you last employed there ? 

A. I don't remember the exact date. I think it 
was about four months ago. 

Q. Four months ago? A. Yes. 

Q. And were you employed there at the time of 
the election in June of 1950? A. Yes. 

Q. And when did you first go to work at Howell ? 

A. Well, that was in 1949; I think it was in 
November. 

Q. And what were your duties at Howell Chev- 
rolet? A. Oh, delivery, tow truck. 

Q. Pardon? A. Delivery and tow truck. 

Q. You delivered automobiles and you drove the 
tow truck, is that it? A. That is right. 

Q. Now, do you know Mr. Howell ? 

A. Yes, I do. 

Q. And prior to the election in 1950, did Mr. 
Howell speak to you at all about the union ? 

A. Well, just one time. 

Q. And when was that ? [257] 



vs. Howell Chevrolet Co., etc. 227 

(Testimony of Boyce Skelton.) 

A. That was before the election. I don't know 
how long before — two weeks, a week, I don't know. 

Q. And whereabouts was it that he spoke to 
you? 

Trial Examiner Myers: Do you mean about a 
week or two before the election ? 

The Witness : Yes, something like that. 

Q. (By Mr. Nutter) : And whereabouts did you 
have this conversation ? 

A. This was just there on the grounds. 

Q. Grounds of the company? A. Yes. 

Q. And could you tell us about where it was? 

A. You mean whereabouts on the grounds ? 

Q. Yes. Where were you customarily employed? 

A. It was on the parking lot there that they 
have. 

Q. A parking lot; and was there anyone else 
present besides yourself and Mr. Howell ? 

A. No. 

Q. Now, will you tell what was said at this con- 
versation ? 

A. Oh, it was just that if the union was de- 
feated, why, everybody would get a raise. [258] 



Q. How did the conversation open up ? 

A. I don't remember all that was said. It was 
too long ago. That was the whole point in the con- 
versation. 

Q. Did you say anything in answer ? 

A. Well, yes, but I don't remember what I said. 



228 National Labor Relations Board 

(Testimony of Boyce Skelton.) 

Q. Well, do you recollect anything else of the 
conversation ? 

A. No, we just talked for just about a minute, 
was about all. 

Q. Well, did he approach you or did you ap- 
proach him ? 

A. Well, we were walking along and he said, 
"Good morning," or something like that; and he 
stopped, and that is when we started talking. 



Q. Do you know Mr. Bordeaux 

A. Yes, I do — service manager at Howell — yes. 

Q. Did he ever talk to you about the union prior 
to the election? A. Not personally, no. 

Q. Well, did he ever talk to you in a group of 
other men % A. Yes. 

Q. And when was that? 

A. Well, I don't know; about the same length of 
time before the election, I guess. 

Trial Examiner Myers : You mean about a week 
or two before [259] the election ? 

The Witness : A week or two before, somewhere 
around there. 

Q. (By Mr. Nutter) : And whereabouts was 
this conversation ? Where did it take place ? 

A. It was at the company. 

Q. And whereabouts at the company ? 

A. Well, it was on the grounds somewhere. I 
don't remember. It was either in the service de- 
partment or on the grounds. 



vs. Howell Chevrolet Co., etc. 229 

(Testimony of Boyce Skelton.) 

Q. By the grounds you mean the parking lot? 

A. The parking lot, yes. 

Q. And who were present? 

A. Well, I can't say because I don't remember. 

Q. Could you tell me approximately how many 
men were present ? 

A. Oh, three or four maybe — five, I don't know. 

Trial Examiner Myers: Were these three or 
four or five people employees of Howell 1 

The Witness : Yes. 

Q. (By Mr. Nutter) : And do you remember 
what time of day it was? A. No, I can't. 

Q. Now, what did Mr. Bordeau say? 

A. Well, I imagine it 

Trial Examiner Myers : Do not tell us what you 
imagine. 

Q. (By Mr. Nutter) : Tell us what he said. 

Trial Examiner Myers: Tell us what you re- 
member. [260] 

The Witness: Oh, about the same thing that I 
said before there. 

Mr. Nicoson: Move to strike the answer as not 
responsive. 

Trial Examiner Myers : Strike the answ T er. You 
have to tell us just what you remember what Mr. 
Bordeau said, and what the other people said. Just 
try to recollect what there was said. 

The Witness : I don't remember the exact words. 

Trial Examiner Myers : I just said tell us what 
you remember. 



230 National Labor Relations Board 

(Testimony of Boyce Skelton.) 

Mr. Nutter : In substance what lie said. 

Trial Examiner Myers: Of course you cannot 
remember the exact words. 

The Witness: Well, it all boiled down that if 
the union was defeated 

Mr. Nicoson: Object to what it all boiled down 
to as a conclusion of the witness. 

Trial Examiner Myers : Strike that. Now, with- 
out going through those formalities, just try to tell 
us what you remember he said. We know you can- 
not tell us exactly what he said. 

The Witness : Well, it added up to 

Trial Examiner Myers: Do not say "it added up 
to" or "boiled down," or this and that. 

The Witness: Well, he said that if the union 
was defeated that everybody would get a raise. 

Q. (By Mr. Nutter) : Anything else said ? [261] 

A. No. 

Q. Well, did this group of employees break up 
then after this, or what happened 1 

A. Yes, it was just a conversation. 

Q. How did the employees happen to gather 
there at that time f 

A. Just — I don't know. The employees gather 

when there isn't much to do; they just stand around 

and talk. [262] 

* * * 

Cross-Examination 
By Mr. Nicoson : 

Q. Now, this time that you spoke about Mr. 



vs. Howell Chevrolet Co., etc. 231 

(Testimony of Boyce Skelton.) 

Bordeau having something to say, that was an oc- 
casion when the men were just standing around 
shooting the breeze when you did not have anything 
to do ; is that right ? A. That is right. 

Q. And that happens when in slack business the 
boys hang around and start talking and they come 
around and join in the conversation? That is one 
of those such days ? A. Right. 



Q. Now, how did that subject come up ? 

A. Well, there was a lot of talk at that time 
about the coming election, and when anybody got 
together, you know, that is what they usually talked 
about. So that is how the subject [268] was brought 
up. 

Q. Was there some talk about the election in 
this group that day? 

A. Yes, I believe there was. 

Q. Was that before or after Mr. Bordeau made 
this statement? A. Well, it was before. 

Q. Is it not a fact that Mr. Bordeau told you 
that the company could not give you an increase 
because of the pending of the election? Is that 
right? He said something like that, did he not? 

A. I don't remember. 

Q. And he also said that if the union won the 
election then the increases would be up to the 
union ? A. Yes, that is right. 

Q. And he said in the alternative that on the 
other hand if the union did not succeed, then the 



232 National Labor Relations Board 

(Testimony of Boyce Skelton.) 

company could be free to give such deals to the 

men as it wanted to ? A. That is right. 

Q. And that is what he said ? 

A. That is right. 

Q. Now, the reporter does not get the nodding 
of your head. 

A. I said, ? ' That is right. ' ' [269] 



EDWARD DALY 

a witness called by and on behalf of the General 
Counsel, being first duly sworn, was examined and 

testified as follows: 

# * * 

Direct Examination 
By Mr. Nutter: 

Q. Mr. Daly, where are you employed ? 
A. For Howell Chevrolet. 

Q. And how long have you worked at the Howell 
Chevrolet? 

A. I work there altogether about nine [271] 

years. 

# #• ■* 

Q. (By Mr. Nutter) : I show you a card, Mr. 
Daly; is that your signature? A. Yes. 

Q. Did you sign that? 

A. Yes — this is to find out what it is all about. 

Trial Examiner Myers : Did you sign that card ? 

The Witness: I didn't sign the second one, and 
I didn't pay a penny in the union. I just signed 



vs. Howell Chevrolet Co., etc. 233 

(Testimony of Edward Daly.) 

that that if the union happened to take over the 
place, I have to go with them. Otherwise, I have to 
get out. 

Q. (By Mr. Nutter) : Did you sign that Jan- 
uary 31st? 

A. Yes — that is a long while back. 

Trial Examiner Myers: Did you sign that card 
on January 31, 1950? 

The Witness : 1950, yes. [272] 

* * # 

(The document heretofore marked General 
Counsel's Exhibit No. 37 for identification was 
received in evidence.) [273] 

GENERAL COUNSEL'S EXHIBIT No. 37 

Authorization for Representation under the 
National Labor Relations Act 

I, the undersigned, employee of Howell Chevrolet 

Co., employed at Pender & Body, Dept No , 

Clock No , Shift No Plant No 

Home Address— St. : 1250 4th Ave. 
City:L. A. 

Tel. No. : 

hereby authorize the International Association of 
Machinists to represent me as my exclusive Collec- 
tive Bargaining Agent with respect to wages, hours 
of employment, and other conditions of employment, 
in accordance with the provisions of the National 
Labor Relations Act. 



234 National Labor Relations Board 

(Testimony of Edward Daly.) 

The full power and authority to act for the under- 
signed as described herein supersedes any power 
or authority heretofore given to any person or 
organization to represent me. 

This does not obligate me financially in any way. 

Date: 1/51. 

/s/ ED DALY. 

(Signature of Employee.) 

ED DALY. 

(Please Print Name.) 

Admitted November 2, 1950. 



Mr. Nutter : I want to make one request I made 
of Mr. Potruch, whether he will stipulate that the 
pay roll of February 1st was also for January 31, 
1950. 

Trial Examiner Myers : 1950 1 

Mr. Nutter s 1950. I think that is General Coun- 
sel's Exhibit No. 8. 

Mr. Potruch : We so stipulate. 

Trial Examiner Myers: That the same persons 
were employed on January 31, 1950, whose names 
appear on that list submitted by the company, 
headed, "Feb. 1, 1950' '1 Is that right? 

Mr. Potruch : That is right, sir. 

Trial Examiner Myers: Is that acceptable to 
you, Mr. Nutter ? 



vs. Howell Chevrolet Co., etc. 235 

Mr. Nutter : It is acceptable. [275] 



Mr. Nicoson : At this time respondent would like 
to renew its motion previously made with respect 
to the lack of jurisdiction of the National Labor 
Relations Board over this Respondent on the same 
grounds as previously stated. 

Trial Examiner Myers: I will reserve decision. 

Mr. Nicoson: We further move that the com- 
plaint be dismissed in its entirety on the ground 
that there is no sufficient and substantial evidence 
to sustain the allegations of the complaint. 

Trial Examiner Myers: Motion denied, that is, 
to the issues involved here, except as to the motion 
with respect to jurisdiction. 



JACKSON HOWELL 

a witness recalled by and on behalf of the Respond- 
ent, having been previously duly sworn, was exam- 
ined and testified further as follows: 

Direct Examination 
By Mr. Nicoson : [276] 

* *• ■* 

Q. What is your business or occupation? 

A. President of Howell Chevrolet Company, 
Glendale. 

Q. Where is Howell Chevrolet Company lo- 
cated? A. 1000 South Brand Boulevard. 



236 National Labor Relations Board 

(Testimony of Jackson Howell.) 

Q. What is the Howell Chevrolet Company? 

A. Automobile agency. 

Q. Is that a corporation % A. Corporation. 

Q. Were you president of that corporation dur- 
ing the period of 1950 up to now ? 

A. Yes, sir. 

Q. And were you also president of the corpora- 
tion on January 1, 1950 ? A. Yes. 

•* 4fr -* 

Q. When was the first time that you had learned 
that there was any union activity among the em- 
ployees of your company, sir % 

A. When I was served with notice by the Na- 
tional Labor Relations Board. I don't know which 
came first, whether the union activities or the one 
from the National Labor Relations Board; but 
whichever came first, that was the first notice I had. 

Q. I show you a document which is in evidence 
as General [277] Counsel's Exhibit 23, and ask you 
to examine it and state if that is one of the notices 
you received from the union and to which you have 

just referred*? 

* * * 

Q. And then did you thereafter issue any in- 
structions to any of your employees or supervisors % 

A. Yes. Upon the advice of Mr. Potruch I in- 
structed Chub Bordeau, our service manager; Bob 
Roberts, our used car manager; Jerry Whitten, our 
parts manager. 

Q. What instructions did you issue to them ? 



vs. Howell Chevrolet Co., etc. 237 

(Testimony of Jackson Howell.) 

A. That there was to be as a result of the action 
no partiality shown in any direction, no discrimina- 
tion as far as any of the employees were concerned. 
No one was to be fired, and our position would re- 
main absolutely neutral in the entire matter. 

Q. So far as you know, have those instructions 
been carried out to the letter ? 

A. To the best of my knowledge, they have. 

Q. Did you issue any other instructions to your 
supervisors [278] other than what you have just 
related % 

A. Well, on numerous occasions from the origi- 
nal date, I checked with the department heads, con- 
ferred with them, and emphasized and reemphasized 
the point that none of the people that were ob- 
viously in the union were to be discriminated 
against in any manner, shape or form. 

Q. And by those obviously in the union you 
meant those that had been seen wearing union but- 
tons, is that correct? 

A. Had been seen wearing union buttons. 

Q. There has been some testimony about Mr. 
Potruch making a talk or a speech to the employees 
of your company. Do you know anything about 
that? 

A. Yes, I was there at the time of the speech, 
the time the initial speech was made. 

Q. Do you know which of your employees were 
in attendance? 

A. All of the employees that were at work that 



238 National Labor Relations Board 

(Testimony of Jackson Howell.) 
day that were employed in the shop — the main shop, 
the paint shop, the body shop, the used car refinish- 
ing, the lube rack, and the used car mechanics and 
the parts men. 

Q. Now, is it a fact that these were all assem- 
bled in one place ? 

A. One place in the rear of the shop. 

Q. And about what time of day did that occur? 

A. I think it occurred before noon. 

Q. And do you know on what date it [279] 
occurred ? 

A. No, I don't. I don't recall the date. 

Q. What is your best recollection as to the date ? 

A. I believe it was in March, March or April. 

Q. At that time did you have anything to say 
to the employees? A. Yes, yes, I did. 

Q. What did you say? 

A. I introduced Mr. Potruch as the attorney for 
Howell Chevrolet. I told the men that no doubt 
they, that many of them, were familiar with the 
fact that there were some union activities going on 
and that I had hired Mr. Potruch, of the firm of 
Carter & Potruch, to represent me and that I 
wanted him to talk to them to explain the company 
policies. 

Q. Did you have anything else to say at that 
time? 

A. At the conclusion of his talk I adjourned the 
meeting. 

Q. Those are the only things that you said dur- 



vs. Howell Chevrolet Co., etc. 239 

(Testimony of Jackson Howell.) 

ing the entire time the employees were assembled 

there? A. That is right. 

Q. I take it Mr. Potruch did make some remarks 
to the employees? A. He did. 

Q. Will you now state to us best as you can 
recall what Mr. Potruch said at that time and 
place % 

A. Well, I don't know whether I have this in 
chronological order or not, but he told the men 
that there was no difficulty as far as Howell Chevro- 
let was concerned with the union; that Howeil 
Chevrolet had nothing against the union; that the 
unions [280] had, in his opinion, a definite place 
in the picture. He told them that I felt and he 
felt that we didn't, being small merchants, come 
under the jurisdiction of the National Labor Re- 
lations Board; and then he went into some detail 
in that connection. Then he covered three phases 
of strike situations, three different types of strikes. 
I don't recall any of the details. My thinking was 
that it was impartial. 

Mr. Nutter: Objection, Mr. Examiner. I object 
to his opinion as to the speech. 

Mr. Nicoson: That may go out. 

Trial Examiner Myers: Do not give us your 
conclusion. You were asked what Mr. Potruch said. 

The Witness: He said further that he felt that 
the employees should in cases of difficulty try and 
work out their difficulties with their employer. If 
they endeavored to do that on a fair and honest 



240 National Labor Relations Board 

(Testimony of Jackson Howell.) 

basis and were not able to get anywhere, I recall 

very vividly he said if he were in their position he 

would hang the employer. 

He said further that we intended to stand on the 

position that we did not come within the jurisdiction 

of the National Labor Eelations Board and that he 

would personally fight the case to my last [281] 

dollar. 

* * * 

Q. Now, do you recall whether Mr. Potruch 
said anything to the effect that the union would 
never get a contract with the Howell Chevrolet 
Company? 

A. I am positive he did not say that. 



Q. (By Mr. Nicoson) : Did you have a conver- 
sation with Mr. Ed Daly? A. Yes, I did. 

Q. That is the same Mr. Daly that was on the 
stand here this morning? [282] 

A. That is correct. 

Q. About when did you have your conversation 
with Mr. Daly? 

A. It was about two weeks before the National 
Labor Relations Board conducted the vote. 

Q. Where was the conversation? 

A. In the body shop just opposite his stall. 

Q. That is where Mr. Daly works? 

A. That is right. 

Q. Was there anyone there besides you and Mr. 
Daly? A. Not at the outset. 



vs. Hoivell Chevrolet Co., etc. 241 

(Testimony of Jackson Howell.) 

Q. Was there anyone before the conversation 
was concluded? A. Yes. 

Q. Who was that? A. Smith. 

Q. So during the conversation there were just 
you, Mr. Daly and later on Mr. Smith? 

A. That is right. 

Q. Will you now tell us what you said to Daly, 
what Daly said to you, what you said to Smith, if 
anything, and what he said to you? Give us the 
full conversation and who said it. 

A. Well, I was passing by and as I frequently 
do, when Ed is looking, I stopped and talked to 
him. 

Trial Examiner Myers : That is Daly ? 

The Witness: That is Daly, Ed Daly. I said, 
"How are you getting along, Ed, and how is the 
job coming ?" et cetera. [283] 

And Ed stopped and said, "How about this union 
thing, and when are we going to get a raise?" 

And I said, "Ed, I can't talk to you about it. I 
can't answer your question because I don't know. 
You were at the meeting when Mr. Potruch spoke 
originally, when he said that there could be no cuts 
in salary, no discharges, no increases. So until the 
matter is disposed of, I am not in a position to 
answer your question." 

During that conversation, Smith came into the 
picture. 

Q. (By Mr. Mcoson) : Do you know at what 
juncture this Mr. Smith came into the picture? 



242 National Labor Relations Board 

(Testimony of Jackson Howell.) 

A. When Daly asked for the increase, when lie 
asked the question as to when they were going to 
get the increase. 

Q. Mr. Smith testified that he had a conversa- 
tion with you at about this time and place, and ho 
said in substance that you said to him that if the 
union came into the plant, there would be a strike. 
Did you make any such a statement I 

A. I did not. 

Q. Mr. Smith further testified that at that time 
and place that you said to him that if the union was 
voted out, the boys in the body shop would get a 
50 per cent commission the first month. Did you say 
that? 

A. I did not. I had no conversation with Smith. 
My conversation was with Daly; Smith was the 
spectator. 

Daly then brought up the point that the Pontiac 
dealer down [284] the street had just recently gone 
to 50 per cent on his metal work for his metal men 
and for his painters, and he, by God, couldn't under- 
stand why we weren't paying it. It was a little 
difficult to make Ed understand and I rehashed the 
thing with him again, that we couldn't move in 
any direction, decreases or increases; and that was 
the complete text of my discussion when Smith was 
present. 

Q. Now, there has been some testimony here 
about a meeting that was held in the Mayfair 
Hotel in Glendale. Is there a Mayfair Hotel in 
Glendale? A. There is not. 



vs. Howell Chevrolet Co., etc. 243 

(Testimony of Jackson Howell.) 

Q. There is a Mayfair Supper Club? 

A. That is right. 

Q. And was that where the meeting was held? 

A. That is where the meeting was held. 

Q. And do you recall about when the meeting 
was held ? 

A. The meeting was held on a Monday evening 
following the election. 

Q. About how long after the election would you 
say? A. I think it was three or four days. 

Q. And who was present at this meeting ? 

A. All of the shop employees. I mean by that 
the body shop, the mechanics, the washers, the 
lubrication men, the parts department, the used car 
refinishing department, some of the new car sales- 
men, some of the used car salesmen; the [285] de- 
partment heads, including the sales manager and 
our office manager. 

Q. Did you have something to say there that 
night? A. Yes, I did. 

Q. What did you say? 

A. Well, at the conclusion of dinner I told the 
men that I had some announcements to make to 
them: That, as they all knew, we had just gone 
through the election, and as far as I was concerned, 
I had forgotten about it. I wanted them to forget 
about it. I hoped that there would be no hard feel- 
ings either toward myself or the union, that I har- 
bored no hard feelings toward them. 



244 National Labor Relations Board 

(Testimony of Jackson Howell.) 

I said I hoped further there would be no hard 
feelings amongst the people in the organization. 
I said, 'As far as the activity is concerned, I have 
completely forgotten about it. There will be no 
discriminations against anybody. I want you people 
to forget about it." 

I said that I was announcing a change in our flat 
rate schedule from $3.00 to $3.50 an hour; that we 
were changing the pay of the mechanics on the line 
and all of the people in the shop, the shop proper, 
that were on a percentage basis, from 40 to 45 per 
cent. The metal men to 50 per cent, the painters 
to 50 per cent. They were getting 50 per cent. 

Trial Examiner Myers: Those you raised to 50, 
were they raised from 40? 

The Witness: From 40 to 50. I further an- 
nounced a [286] $68 guaranteed work week. 

* * * 

Q. All right. 

A. I recall I closed the meeting with the though r 
that our business had been interrupted, disturbed: 
that our livelihood, including theirs, was dependent 
upon the public, and that I hoped that we could 
have a good happy organization because only 
through a happy organization could we give good 
service and have good public relations. 

With that the meeting was adjourned. 

Q. Is this the first time you ever had a meeting- 
like this? A. No, sir. 

Q. Have you had them before ? A. Yes. 



vs. Howell Chevrolet Co., etc. 245 

(Testimony of Jackson Howell.) 

Q. Over what period of time? 

A. Well, at no stated intervals. We have had 
meetings around the holidays generally, and some 
special occasions something would come up, we 
would have an organization meeting. [287] 

Q. There has been some testimony in this record 

that you have stated that if the shop went union 

you would close it up. Did you ever make such a 

statement ? 

# * # 

Trial Examiner Myers : If he wants to put it in 
that way, that is all right. Now, will the reporter 
please read the question to the witness? 

(Question read.) 

The Witness : The answer is that I definitely did 
not. 

Q. (By Mr. Nicoson) : Mr. Hansen, a witness 
here, testified that he had a conversation with you a 
few days before the election on the wash rack while 
Mr. Hansen was putting on his boots, at which time 
you asked Mr. Hansen for the vote in favor of the 
plant. Did you do that ? A. I did not. 

Q. Mr. Hansen further testified that he said 
he would do his best. Did he say that? 

A. Not to my knowledge. [288] 

Q. Mr. Hansen also testified that at the same 
time and place you told him that something would 
be done about a raise in 30 days. Did you say any- 
thing like that? 

A. I did not. He inquired about a raise, and I 



246 National Labor Relations Board 

(Testimony of Jackson Howell.) 
told him the same story that I had told Ed: That 
with the situation as it stood, there could be no 
raises, there could be no decreases, there could be 
no firing, that he could not have an answer on that 
until after the election. 

Q. Mr. Hansen also testified that at that time 
and place that you stated to him that you would 
give him a raise if he would vote against the union. 
Did you say anything like that? A. I did not. 

Q. Mr. Boyce Skelton, a witness for the General 
Counsel, has testified here that at one time he spoke 
to you about the union before the election, and 
probably two or three weeks before, that the con- 
versation took place on the company's ground at 
the parking lot at which time you said to him that 
if the union was defeated the boys in the body shop 
would get a raise. Did you say that? 

A. I did not. 

Q. Did you say anything like that to him? 

A. No, I did not. 

Q. Did you have any such conversation with 

him? [289] 

# * * 

The Witness : No. 

Q. (By Mr. Nicoson) : Do you have any knowl- 
edge of the layoff of Mr. Claude Leonard? 

A. I do. 

Q. What is that knowledge ? 

A. Mr. Bordeau came to me prior to his layoff 
and explained to me that there wasn't sufficient 



vs. Howell Chevrolet Co., etc. 247 

(Testimony of Jackson Howell.) 
work in the shop to support a separate brake de- 
partment and a front end and frame straightening 
department. It was his opinion that the two depart- 
ments should be consolidated. 

Q. Did he so state ! A. He so stated. 

Q. Carry on. [290] 

A. Herrick had been running the front-end de- 
partment and the frame-straightening department. 
Leonard has been working in the brake department. 
Leonard, in Bordeau's opinion, was not capable of 
operating the frame straightening machine. 

Q. Did he so state? 

A. He so stated; and he made the recommenda- 
tion to me that Leonard be discontinued and Her- 
rick take over the two departments. 

Q. Did you have anything to say about that ? 

A. I agreed with him. 

Q. And was that done 

A. Subsequently. 

Q. if you know? A. Subsequently. 

Q. Now, when did this conversation take place? 

A. Well, it was prior to Leonard's dismissal. I 
don't know the date. 

Q. Do you know how long before? 

A. It was about three days before his dismissal. 

Q. Since Mr. Leonard has been laid off, have 
you hired any other brakeman to take his place, or 
do you know A. Not to my knowledge. 

Q. Did you have conversations with anyone out- 
side of Mr. Daly about raises, requests for raises? 



248 National Labor Relations Board 

(Testimony of Jackson Howell.) 

A. I had a number of men all through that 
period asking me [291] about raises. 

Trial Examiner Myers: During what period? 

The Witness: During the period of from the 
time we were notified early in February and up to 
the date of the election in June. 

Q. (By Mr. Nicoson) : What did you answer in 
response to those requests? 

A. My answer in all cases was the same: That 
we could not commit a violation of the National 
Labor Relations Act, that we could not do anything 
to prejudice the union's position, that we could not 
give any increases, that we could not decrease the 
wage, that it had to remain status quo, that no one 

would be fired. 

* * * 

Cross-Examination 
By Mr. Nutter: [292] 

* * * 

Q. (By Mr. Nutter) : Well, after Mr. Leonard 
was discharged, who took his place? [294] 

* # * 

The Witness : No one took his place. 
Q. (By Mr. Nutter) : Did anyone do his work ? 
A. Yes. 

Q. Who? A. Herrick. 

Q. Did anybody assist Mr. Herrick in doing any 
of Mr. Leonard's work? 
A. Not on our payroll. 
Q. Well, did anyone assist him? 



vs. Howell Chevrolet Co., etc. 249 

(Testimony of Jackson Howell.) 

A. On occasion. 

Q. Who was that? 

A. I don't know the man's name. 

Q. Did you give Mr. Herrick permission to have 
another man come in to assist him? 

A. I did not. 

Q. Who did? A. Mr. Bordeau. 

# * * 

Q. You saw some men wearing union buttons 
out in the shop, is that right? A. Yes. [295] 

Q. And you saw Claude Leonard wearing a union 
button, did you not? A. Yes, I think so. 

Q. Is it your sworn testimony that you did not 
discuss a pay raise with George Smith on the date 
that you discussed one with Ed Daly? 

A. That is correct. [296] 



Redirect Examination 
By Mr. Mcoson : 

Q. Did you see Mr. Herrick wearing a union 
button? A. Yes, I did. 



250 National Labor Relations Board 

ROWLAND BORDEAU 

a witness called by and on behalf of the Respondent, 
being first duly sworn, was examined and testified 
as follows: [297] 



Direct Examination 
By Mr. Mcoson: 

Q. What is your business or occupation, Mr. 
Bordeau? 

A. I am a service manager at the Howell Chev- 
rolet Company. 

Q. Are you sometimes referred to as Chub? 

A. Yes, sir. 

Q. C-h-u-b, is that correct? 

A. Yes, that is a nickname. 

Q. How long have you been service manager for 
Howell Chevrolet? 

A. Since the 10th of May, 1949. 

Q. As service manager what are your duties? 

A. My duties are to run the repair department, 
supervise the service department and paint shop 
and trim shop and lube rack and body shop. [298] 

Q. What is the body shop? 

A. Where is the body shop? 

Q. What is it? 

A. The body shop is where we repair wrecked 
automobiles. 

Q. Fenders? 

A. Repair collisions. That is right, straightening 
fenders and bodies. 



vs. Howell Chevrolet Co., etc. 251 

(Testimony of Rowland Bordeau.) 
Q. Fix doors and things of that nature? 
A. Yes. 

Q. There has been some testimony here about 
used car mechanics. Do you have anything to do 
with them? A. No, sir. 

Q. I will ask you if on or about February 1 you 
saw certain of your employees wearing union but- 
tons? A. Yes, sir. 

Q. Will you name those that you now recall as 
having been seen by you wearing buttons as of that 
date? 

A. George Kirkland, Lee Fitzhugh, Claude 
Leonard, Phil Caballero, Kenny Herrick, Richard 
Wells. 

Q. Is that all that you recall ? 
A. I believe one body man, but I do not remem- 
ber his name. 

Q. All right. At or about that time did you have 
anything to say to these employees about their 
wearing the union button? A. No. 

Q. Did you discuss it with them or did they 
discuss it with [299] you? A. No, sir. 

Q. Was the wearing of the union buttons the 
first time that you were aware that there was any 
union activity in the plant? A. Yes. 

Q. Mr. Leonard has testified here that on one 
occasion while he was talking with a George Davis 
in the body shop, that you called to him and told 
him not to bother the men there, that you did not 
want any campaigning while on duty. Did any such 
conversation as that take place? A. Yes. 



252 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 

Q. Tell us about it. 

A. Well, on several occasions I would look out 
through the service department and see Claude 
Leonard talking to the body men. There would be 
one of the men, maybe two of the men. He would 
be talking to them, especially a new man that came 
on the job. At that particular time we had quite a 
turnover in body repairmen; and each time a new 
man would go on the job in the morning at 8:00 
o'clock, it would be about 8:30 and Leonard would 
be down there talking to him. And I told him I 
believe about three times that I did not want him 
talking to the men between 8:00 and 5:00 o'clock. 

Q. Now, at the time that you spoke to Mr. 
Leonard about this subject, was it during working 
hours ? A. Yes. [300] 

Q. Was it at a time when Mr. Leonard was sup- 
posed to be working % A. That is right. 

Q. Was Mr. Leonard anywhere close to his place 
of work? A. I would judge about 200 feet. 

Q. From the place 

A. Where he was supposed to be working. 

* -X- * 

Q. Mr. Leonard said that he was laid off on or 
about March 31, 1950. Is that fact? A. Yes. 

Q. Did you have anything to do with the layoff? 

A. Yes. 

Q. What did you have to do with it? [301] 

A. I was the man that done it. 

Q. Did you discuss the matter with Mr. Howell 

prior to it? A. Yes. 



vs. Howell Chevrolet Co., etc. 253 

(Testimony of Rowland Bordeau.) 
Q. What led you to take that particular act? 
A. Well, I had very little brake work at that 
time, and very little frame work and a little front- 
end work. I didn't have enough for two men to 
keep two departments going. I decided to put- 
consolidate the two departments. 

And I felt that Herrick was the best man of the 
two, due to the fact that he was a frame man and 
a front-end man and Leonard was not. He is also 
a good brake man. 

Q. You had worked with Mr. Herrick, had you? 
A. Yes, sir. 

Q. And had an opportunity to observe his quali- 
fications in the matter? A. Yes, sir. 
Q. And in the manner he handles his work? 
A. Yes, sir. 

Q. Did you reach any conclusions as to the rela- 
tive qualifications of Mr. Herrick and Mr. Leonard 
with respect to brake work? 

A. Mr. Herrick had turned out one or two jobs, 
complete brake jobs, while Leonard was there, when 
he was working on another job; and he turned out 
a much better job than Claude Leonard. [302] 

Q. While you were there, did Mr. Leonard work 
on any front end? A. No, sir. 

Q. Did you ever attempt to get Mr. Leonard to 
work on front ends? A. On two occasions. 

Q. Did you ask him to do so ? A. Yes, sir. 

Q. Did he make a reply? 
A. He said that he did not want to do any front- 



254 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 

end work. He did not know anything about it and 

he was a brake man. 

Q. After that did you ask Mr. Leonard to do 
any front-end work? A. No, sir. [303] 

* * * 

Q. What did you hear Mr. Potruch say while 
you were there? 

A. Well, the few minutes that I was in there, 

one time that I was in there, he had a sample ballot 

and he was explaining it to them and showing them 

how to vote, how to mark the ballot, with an X, and 

I believe he read a little paragraph of some book 

of the NLRB, something to that effect. I do not 

recall it too well. 

■* •* # 

Q. Prior to Mr. Leonard's layoff, where did he 
work? A. He worked in the back shop. 

Q. Did he have a stall? A. Yes, sir. 

Q. And was there any machinery in that store 
particularly adaptable to brake work? 

A. Yes. 

Q. What was there? 

A. Brake drum turning lathe. [305] 

Q. Anything else? A. No. 

Q. After Mr. Leonard was laid off was anything 
done with that turning lathe? 

A. Yes, sir, moved. 

Q. Where was it moved to? 

A. It was moved out in the front-end depart- 
ment. 



vs. Howell Chevrolet Co., etc. 255 

(Testimony of Rowland Bordeau.) 

Q. And would that have any relation to where 
Mr. Herrick had been working? A. Yes. 

Q. And what is that relationship ? 

A. Well, it was moved right alongside of the 
front-end machine. 

Q. That is adjacent to Mr. Herrick 's previous 
location of work? A. Yes, sir. 

Q. And why was that done? 

A. Well, it was for convenience and also I 
wanted to get the noise out of the shop. It makes 
quite a racket when you are turning the drum. 

Q. Now, there has been some testimony here 
about somebody helping Mr. Herrick. Do you know 
anything about that? A. Yes, sir. 

Q. Tell us what you know about that. 

A. Well, on a few occasions we have had a job 
come out of the shop, and before the metal men 
could finish up with it, [306] the frame had to be 
straightened, and it would come out at such time 
when Herrick was busy with brakes, that he would 
call in this friend of his. I don't know the man's 
name; we didn't pay the man. I understand from 
Mr. Herrick that this man owed him some money 
and still owes him some money. 

Mr. Nutter: I object to this testimony. 

Mr. Nicoson: I will connect it up later. 

Mr. Nutter: I move that it be stricken at this 
time. 

Trial Examiner Myers: Strike out the last. 

Q. (By Mr. Nicoson) : Were you told anything 
by Mr. Herrick about this arrangement? 



256 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 
Mr. Nutter: I object. Mr. Herrick — 



Trial Examiner Myers: Overruled. You may 
answer. 

The Witness : I asked Mr. Herrick who this man 
was he had working for him there, helping him out. 
And he said it was a friend of his, an old-time 
mechanic, and he owed him some money. That was 
the only way he could collect it, to have him come 
in and help him. The man would work on the frame 
machines, or he would work on brakes and Herrick 
would work on the frame machines. 

Q. (By Mr. Mcoson) : Did that happen often? 

A. It happened about four times, I believe, dur- 
ing a period of about three months. 

Q. And I believe you stated that Howell did not 
pay the man's wages? [307] 

A. That is right. 

Q. Howell Chevrolet Company did not call him 
to work, is that correct? A. That is correct. 

Q. Did any of the employees at Howell ask you 
about a raise in pay? A. Yes. 

Q. Name some of the people that did. 

A. Bill Schoene asked me on two different times 
about a raise. 

Q. Now, when did he ask you? 

A. Two or three weeks before the election. 

Q. And where were you and where was he? 

A. Right in his stall where he works in the front 
part of the shop. 

Q. Was there anybody else there besides the two 
of you? A. No, sir. 



vs. Howell Chevrolet Co., etc. 257 

(Testimony of Rowland Bordeau.) 

Q. What did you say to him and what did he 
say to you? 

A. He asked me — he said, "What is the chance 
of getting a little bit more money ?" He is on a 
monthly salary, incidentally. 

I said, "Bill, we cannot do anything about this 
salary deal right now. We have got this thing com- 
ing up with the NLRB." And I says, "Nothing 
can be done about any salaries at all until after this 
is over with, and then we will find [308] out from 
Mr. Potruch what can be done." 

Q. Did Mr. Schoene have any reply to make? 

A. He says, "That is OK with me." 

Q. And did you have any conversation with any 
other of the employees out there with respect to a 
raise? A. No, sir. 

Q. A Mr. George Smith has testified that on one 
evening he was in the Playhouse Bar and Grill, or 
whatever it is, in Glendale, at which time you and 
Kenny Herrick were present, and that at that time 
and place you and Mr. Herrick were talking about 
the union, and that during the course of that con- 
versation you told Mr. Herrick that if the union 
came into the Howell Chevrolet Company that Mr. 
Howell would close down the shop. 

Was anything like that said? A. No, sir. 

Q. Did you talk with Mr. Herrick about the 
union? A. Yes, sir. 

Q. What did you say to him and what did he 
say to you? 



258 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 

A. Well, I was in there first. He came in and 
sat down beside me, and he said, "Chub, what about 
this union? What are we going to do about this 
union deal?" 

And I said, "Well, Kenny, there is nothing to do 
about it but use your head. You do whatever you 
see fit, whatever you think is best for you." [309] 

Q. Was there anything further then in that con- 
versation between you and Mr. Herrick or between 
you and Mr. Herrick and Mr. Smith or between 
you and Mr. Smith or anyone else? 

A. No, sir ; nothing that pertains to this. 

Q. At the occasion of one of the second meetings 
of Mr. Potruch, Mr. Smith testified that you told 
about working in the shop in San Francisco and 
that you said that the union would not do the 
employees any good, that you ran a union shop for 
about 14 years, and that all you had to do to get 
the man you wanted was to give the union business 
agent a fifth of whisky or a $10.00 bill. Did you 
say anything like that? A. I did not. 

Q. Anything at all like that? 

A. No, sir. I told them I ran a union shop for 
12 years. 

Q. Is it not a fact that at one time you were a 
member of the Machinists Union? 

A. That is right. 

Q. Mr. Smith testified here that at the time he 
left Howell Chevrolet Company that he voluntarily 
resigned. Do you know anything about his leaving 
Howell Chevrolet? A. Yes. 



vs. Howell Chevrolet Co., etc. 259 

(Testimony of Rowland Bordeau.) 
Q. Will you tell us what you know? 
A. Well, on numerous occasions I found him on 
the job drunk in the middle of the afternoon, he 
and another fellow. And one afternoon I went out 
there, and they were both drunk. Each [310] had 
a separate automobile. And I fired them both. And 
they were so drunk that they were just stupid 
enough to just hang around. 

* * * 

Q. Prior to the discharge of Mr. Leonard did 
you have any conversation with him in relation to 
the quality of his work? A. Yes, sir. 

Q. When did you first have such a conversation 
with Mr. Leonard? 

A. The first day I went to work for Howell 
Chevrolet Company. 

Q. And did you have such conversations later 
on? A. Yes, sir. 

Q. About how many would you say you had over 
a period of time? 

A. Oh, I would imagine about 10 or 12. 

Q. What was the nature of those conversations? 

A. Well, the first one was — he was overhauling 
brake master cylinders without taking them off the 
car and that cannot be done properly. 

Q. Anything else? [311] 

A. And on brake relines he wasn't bleeding the 
lines all the way out. Consequently, the cars were 
going out and coming back in in a couple of days 
with no brake pedal. 



260 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 

Trial Examiner Myers: Who was this? 

A. Mr. Leonard. 

Q. When did this occur? 

A. On different occasions. 

Q. Over what period? 

A. Between May and the time he was discharged. 

Q. May of A. May of '49. 

Q. Over a period of almost a year? 

A. That is right. 

Q. (By Mr. Nicoson) : All right. Now, about 
the time you came there and had these conversa- 
tions with Mr. Leonard, did you make any change 
in the assignment of certain types of brake work? 

A. Yes, sir. 

Q. What did you do about that? 

A. I assigned all of the — not all of them, but 
about 90 to 95 per cent of the brake adjustments 
went on the lube rack. 

Q. When did you start that? 

A. About a week after I went to work there in 
May of 1949. 

Q. And did you change that practice, up to the 
present time? A. No, sir. [312] 

Q. Did you also about that time give additional 
work to the men on the lube rack? 

A. Yes, sir. 

Q. What type of work did you give? 

A. That was replacing mufflers and tail lights. 

Q. Now, why did you assign that type of work 
to the lube rack? 



vs. Hotvell Chevrolet Co., etc. 261 

(Testimony of Rowland Bordeau.) 

A. Well, the primary reason for that was that 
it speeds up the operation. It gets the customer out 
of there faster; and all the shops that I ever run 
before — they always done the brake adjustments on 
the lube rack. A lot of times the customer has only 
got 20 minutes or so, and he wants his car lubed 
and his brakes adjusted, and he has to get down 
here to Los Angeles to work. So when the car is 
on the rack it is a lot easier to adjust the brakes 
which only takes five or ten minutes at the most on 
a car from a 1939 model up. It just speeds up the 
operation, that is all, and gives the customer a bet- 
ter service. [313] 

* * ■* 

Q. At Howell Chevrolet what is the practice, if 
any, with respect to assignment of work involving 
stoplight switches 1 

A. That is done in the electrical department. 

Q. By whom? A. By Doyle Christian. 

Q. Is he what is commonly termed the tune-up 
man? A. Yes. 

Q. Now, there are two different types of stop- 
light switches, are there not? 

A. Yes, sir. [316] 

Q. Both of those types are assigned to Mr. 
Christian? A. Yes. 

Q. Has that been a standard practice since you 
have been with Howell Chevrolet? 

A. Yes. [317] 



262 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 

Cross-Examination 
By Mr. Nutter : 

Q. Mr. Bordeau, do you have a son that works 
for Howell Chevrolet? A. Yes, sir. 

Q. Where does he work ? 
A. Lubrication department. [318] 

# * # 

Q. Now, was this man who assisted Kenny Her- 
rick — was his name Grover Burgett? 

A. I don't know if that is his name. I never 
heard his name. 

Q. Did you discuss with Mr. Herrick bringing 
this man in? [321] 

A. After he brought him in. 

Q. Well, did Mr. Herrick bring him in without 
consulting you ? A. Yes. 

Q. Is it your testimony that the flat rate men 
out there at the plant have the right to bring in 
people who assist them without consulting you? 

A. No, sir. 

Q. How did it happen that Mr. Herrick brought 
this man in without consulting you ? 

A. Well, he brought him in and when he was on 
the job I came over and asked him who the man 
was. 

Q. Who did? A. I did. 

Q. You mean Mr. Herrick put this man to 
work 

A. Well, he hadn't actually started to work yet. 
He just came there one morning with him. 



vs. Howell Chevrolet Co., etc. 263 

(Testimony of Rowland Bordeau.) 

Q. And when was that? 

A. I don't remember what date it was. 

Q. How long was that after Claude Leonard was 
discharged ? 

A. Oh, I would imagine three weeks probably. 

Q. Are you sure about that ? 

A. No, I am not. I said probably. 

Q. And when you first saw this man working on 
the job, what did you say to Herrick? [322] 

A. I asked him who the man was, what was go- 
ing on. 

Q. What did he say? 

A. He said he was just an old mechanic who was 
"an old friend of mine who owes me some money, 
and I am jammed up here with w r ork, and I have to 
get this frame straightened, and I am going to let 
him do the rough straightening on this frame." 

Q. Now, is it not a fact that this friend of his 
actually did the frame straightening and Herrick 
was doing the brake work ? 

A. No, in two instances he was doing brake 
work. 

Trial Examiner Myers : Who is " he ' ' ? 

The Witness: This man that Herrick had 
brought in. 

Q. (By Mr. Nutter) : Well, is there any reason, 
since these men were on a flat percentage basis, that 
Claude Leonard could not do the brake work if the 
company was overloaded ? 

A. Claude Leonard wasn't there. 



264 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 

Q. Well, is there any reason why you could not 
have retained him if this man was rushed instead 
of bringing in somebody from the outside ? 

A. Well, Kenny wanted this man as a means to 
get the money out of him that he owed him — to get 
him to help him out. 

Q. And is it your sworn testimony that this in- 
dividual only worked for Herrick to pay off his 
debts ? A. That is right. [323] 

* * -x- 

Q. Is this man still assisting Herrick out there 
occasionally? A. No, sir. 

Q. When was the last time he was out [325] 
there f 

A. I do not remember that. I couldn't recall. 

Q. And how many times did you see him out 
there f 

A. About four times, four or five times. 

Q. Now, when was the first time ? 

A. About three weeks after Leonard was laid 
off. 

Q. And when was the second time % 

A. That is as close as I can remember. 

Q. And when was the second time ? 

A. Oh, probably about two or three days right 
in a row, and then maybe a week or two weeks 
elapsed, and he worked another day. It was always 
for one day at a time or a day and a half or some- 
thing like that. 



vs. Howell Chevrolet Co., etc. 265 

(Testimony of Rowland Bordeau.) 

Q. And then a few days later he worked another 

day. Then again. Is that right ? 

A. That is right. [326] 

* * * 

Q. Now, is there any reason why you did not 
ask Claude Leonard to come back and help Mr. 
Herrick when he was overworked? 

A. No, sir. 

Q. You had no reason? A. No, sir. 

Q. Was Mr. Leonard discharged or laid off for 
lack of work? A. Who? 

Q. Mr. Leonard. [327] 

A. He was discharged. 

Q. He was discharged for what reason? 

A. Well, I just got through telling. 

Q. I am asking you now. For what reason did 
you discharge him? 

A. Because he couldn't do frame and front end 
work, and I didn't have enough for a frame and 

front end man and a brake man. 

■* * ■* 

Q. Well, why did you terminate his employ- 
ment ? 

A. Because he wasn't a frame and front end 
man. 

Q. Well, was there a lack of work in the brake 
section? A. Yes, they were slow. 

Q. You testified that this man who assisted Her- 
rick, who came in, worked on brakes, too? Is that 
right ? 



266 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 

A. Yes, I believe he done part of one job. 

Q. Is there any reason why you could not call 
in Mr. Leonard to do that brake work ? 

A. No, I guess there wasn't; but I didn't know 
where to get ahold of him. I didn't know that 
Kenny Herrick was going to feel that he needed 
the help. 

Q. Well, do you not know that Kenny Herrick's 
wages have increased a great deal since Claude 
Leonard left there? [328] A. Yes. 

Q. They are almost double now, are they? 

A. Not now they aren't. 

Q. But up till recently? 

A. Yes, we had a busy season. 

Q. In other words, he had double the work, the 
front end and alignment work, and the brake work f 

A. That is right. 

Q. That just about doubled his commission 
work? A. Well, not quite. 

Q. Almost, though? A. Yes. 

* * ■* 

Q. (By Mr. Nutter): When did Mr. Herrick 
go to work for Howell Chevrolet? 

A. Within the latter part of 1949. 

Q. Would it refresh your memory if I told you 
it was December of 1949? 

A. That could be just about the time. 

Q. Now, you previously testified 

Trial Examiner Myers : Is that right, Mr. Nico- 
son, what [329] he said was the date? 



vs. Howell Chevrolet Co., etc. 267 

(Testimony of Rowland Bordeau.) 
Mr. Nicoson: That is approximately correct. 
Mr. Potruch: Approximately. 



Q. Well, is it your testimony that Mr. Leonard 
was discharged because of defective workmanship? 

A. No. [330] 

Trial Examiner Myers: When you say " defec- 
tive/' you mean inefficient? 

Mr. Nutter: Inefficient. 

Trial Examiner Myers : Is that what you mean, 
Mr. Witness? 

The Witness: Yes, sir. 

Q. (By Mr. Nutter): Now, you testified that 
on two occasions you asked Mr. Leonard to do front 
end work. What were those two occasions? 

A. I do not know when they were, but they were 
sometime between the time of the 10th of May and 
before Herrick came to work there. There was a 
period of about a month or so I didn't have a front 
end man at all. 

Q. Well, can you tell me what season it was — 
spring, summer, fall, winter, or when? 

A. Well, it would have had to have been winter- 
time. 

Q. And about what month? 

A. I don't know, sir. 

Q. Now, tell me the conversation. 

A. Well, we had a couple of front end jobs to 
do. I asked him if he would do them and he said no. 

Q. Well, what did you say to him ? 



268 National Labor Relations Board 

(Testimony of Rowland Bordeau.) 

A. I asked him if he would do a front end job 
for me. 

Q. And what did he say? 

A. He said, "No." He said, " I am not a front 
end man. I am [331] a brake man." 

Q. He just came right out and said, "I am a 
brake man ' ' f Is that right I A. That is right. 

Q. Now, would you say this 

Trial Examiner Myers: Is it your testimony 
that Leonard never did any front end work while 
he was employed by you? 

The Witness: Yes, sir. 

Trial Examiner Myers : None at all ? 

The Witness : None at all. 

Q. (By Mr. Nutter) : Now, when was this 
other occasion? When did that take place? 

A. Oh, a little while after that. I don't recall 
if it was one day or one month. It was sometime 
after that. 

Q. Was this in the fall of 1949? 

A. I don't remember. 

Q. Was it the summer of 1949? 

A. I don't remember. 

Q. Well, actually you don't remember at all, do 
you? 

A. I don't remember those dates when I asked 
him to do those front end jobs, no. 

Q. Well, can you place it at all? A. No. 

Trial Examiner Myers: Was Leonard working 
on any other [332] job at the time you asked him 
to do the front end job? 



vs. Howell Chevrolet Co., etc. 269 

(Testimony of Rowland Bordeau.) 

The Witness: I couldn't answer that because I 
don't recall that. 

Trial Examiner Myers: Who assigns Leonard 
his work ? You and you alone ? 

The Witness: Myself and the service salesman, 
Ed Anthony, are the only two. 

Q. (By Mr. Nutter) : Are there any other oc- 
casions when you asked Leonard to do front-end 
work? A. I don't think so after that. 

Q. At the time of the discharge, did Leonard 
say anything about front end work ? A. Yes. 

Q. On March 31 ! A. Yes. 

Q. What did he say? 

A. He said, "How about letting me do that 
job?" 

I said, "I don't think you are a front end man. 
You told me one or twice you were not a front end 



man. ' ' 



Q. You told him that at the time of the dis 
charge? A. Yes. [333] 



270 National Labor Relations Board 

FREDERICK A. POTRUCH 

a witness called by and on behalf of the respondent, 
being first duly sworn, was examined and testified 
as follows: 



Direct Examination 
By Mr. Nicoson: 

Q. What is your business or occupation? 

A. I am an attorney. 

Q. A member of any law firm? 

A. I am a member of the firm of Carter & Pot- 

ruch. [340] 

* * * 

Q. In your capacity as an attorney have you 
ever been employed by the Howell Chevrolet Com- 
pany? A. That is right. I have and still am. 

Q. There is some testimony in the record, Mr. 
Potruch, about a Mr. Potruch that made some talks 
to the employees at Howell Chevrolet. Are you the 
same Mr. Potruch? A. I am. 

Q. Do you know when the first of those talks 
was made? 

A. I place the first talk sometime in the latter 
part of May, maybe the early part of April, some- 
time in there. I may be wrong by a week or so, but 
it is around in there. 

Q. Of what year? A. 1950. 

Trial Examiner Myers: Did you say the latter 
part of May or the first part of April? 



v s. Howell Chevrolet Co., etc. 271 

(Testimony of Frederick A. Potruch.) 

The Witness: Yes, it is either the last part of 
May or the first week of April. I can't fix the exact 
date. I am [341] sorry— I meant March. I am sorry. 
March. 

Trial Examiner Myers: March? 

The Witness: March. 

Q. (By Mr. Nicoson) : The latter part of March 
or the first part of April; is that your testimony? 

A. Yes. 

Q. Who were present at the time you were mak- 
ing this first of your talks? 

A. Well, Mr. Howell and the employees of the 
shop. I believe they consisted of the parts men, the 
mechanics, the body men, painters, lube men, tune- 
up men. I don't know if I said painters and body 
men— also the cycle-tow boy. I think he was there. 

But at least that is who I asked to have present. 
I don't know if all of those came in, but that is 
the request I made of Mr. Howell, to have those all 
present ; and whether they were there— all of those 
branches— or not, I do not know. 

Q. And as far as you know, they were employees 
of the Howell Chevrolet Company? 

A. As far as I know they were employees of 
the Howell Chevrolet Company. [342] 

* * * 

Q. Tell us how the meeting was conducted. 

A. The meeting was begun by Mr. Howell intro- 
ducing me to the employees and telling them that 
I was representing a firm that was representing 






272 National Labor Relations Board 

(Testimony of Frederick A. Potrach.) 
them in a matter that was pending before the Na- 
tional Labor Relations Board. 

Q. Did you have some remarks to make to those 
men? A. I sure did. 

Q. What did you say to them? 

A. Well, I told them — -I said they were pretty 
aware — first, I started out in a jesting vein, that 
undoubtedly the union has told them about my com- 
ing up and talking to them, and told them that 
probably the company would send up somebody 
from Carter & Potruch, namely, Potruch, to talk 
to them. And we smiled about that, and then I went 
on with the serious angle of this meeting which 
went in a vein as follows: 

I told them that I felt it was no more than right 
for the company to state to them what their policy 
would be toward this whole matter, and I said I 
intended to tell them what that policy was. And 
I proceeded to tell the men what that policy was. 

I told them that the company would test the 
jurisdiction of the National Labor Relations 
Board. I told them that it had been done on other 
occasions; that they were probably aware of that 
and had been told so by the union. And I told 
them that in my opinion an automobile dealer was 
no more than [343] a local merchant — local mer- 
chant of Grlendale, as I put it — who bought his cars 
in the State of California and sold his cars in the 
State of California; and that in my opinion and 
from my knowledge of the law that I didn't think 



vs. Howell Chevrolet Co., etc. 273 

(Testimony of Frederick A. Potruch.) 
that the National Labor Relations Board could 
have any jurisdiction over the matter; that I felt 
that if there was anything to be done by the com- 
pany and the union that they were big enough to 
do it themselves without having anyone step in and 
tell them what to do and what not to do as put in 
any act, and I happened to name the act, the Taft- 
Hartley Act. I didn't use any other name because 
I felt the men might be more familiar with the 
term "Taft-Hartley Act" in talking about labor 
relations acts, et cetera. 

After I presented that to them I went into the 
ramifications of how T the jurisdiction of the Board 
could be decided. I told them that this was a rep- 
resentation proceeding, that the union was asking 
that they represent the men to bargain collectively, 
and that it was at these proceedings that we would 
deny the jurisdiction of the Board; that there 
would be a formal hearing, that we would have to 
run through the gamut of a formal hearing; and 
I told them that we would still stick to our guns 
on the question of jurisdiction at all times, just as 
we have done in these proceedings. 

And I told them that the only way we could get 
an adequate test of the question of jurisdiction, if 
it was to [344] go that far, would be to go into the 
Circuit Court of Appeals as had been done in the 
Townsend case; and then I went into the ramifica- 
tions of getting it into the Circuit Court of Appeals, 
explaining to them how that had to be done, what 



274 National Labor Relations Board 

(Testimony of Frederick A. Potruch.) 

the legal mechanics, the legal procedures, would be. 

I said that it might even — I didn't say it would, 
but it might even necessitate — that for any com- 
pany, not necessarily Howell, to get a case into the 
United States Circuit Court of Appeals, it might be 
necessary to do something to be cited for an unfair 
act under the National Labor Relations Act, that 
someone might have to be discharged, either on a 
friendly basis or even deliberately, and then the 
charge brought. It didn't have to be Howell; it 
could be somebody else. I only used that as an 
example. 

And then they would have a hearing on it, as we 
are now having, and I explained that legally. And 
that after a ruling was handed down, if it was un- 
favorable, then the company would have the right 
to appeal to the United States Circuit Court of 
Appeals ; if the Trial Examiner was to rule against 
the company, and then the Board in Washington 
ruled against us on jurisdiction, that we would have 
to take certain procedures to appeal to the Circuit 
Court of Appeals. 

I even went so far as to tell them that it was 
even possible to go to the United States Supreme 
Court from the Circuit Court of Appeals. [345] 

I wasn't trying to confuse the men, but it was 
a complicated procedure. If I mentioned the word 
" certiorari," it was just in the course of speaking. 
I was trying to avoid any 

Mr. Nutter: Mr. Examiner, I object to what he 
was trying to avoid. 



vs. Howell Chevrolet Co., etc. 275 

(Testimony of Frederick A. Potruch.) 

Trial Examiner Myers: Just tell us what you 
said there. 

The Witness: I told them it was possible to get 
a case up to the Supreme Court with the proper 
set of facts, to get it up there and have the highest 
Court in the land test the question of jurisdiction. 

I also told them that it was possible for a com- 
pany — that during this period in which there was 
either a friendly unfair labor charge or an unfair 
labor act or even a deliberate one — that it is pos- 
sible to have what is known as an unfair labor 
strike, and they could go out. 

I said to them I didn't know whether they would 
do it here ; I was not concerned about it at all. 

I told them that there were other types of strikes 
to show them the difference. I said to them that 
there was an organization strike. I even pointed 
out to them that up to the present time there was 
no such thing. I showed them what that meant. 
I told them that if there was an organizational 
strike the men would be on the line picketing the 
place to have the union represented. And I told 
them about an economic [346] strike, what that 
meant. 

And I also told them what the boss would have 
to do, what the employer would have to do, in the 
form of replacing men and rehiring in case the 
strike was on — even on an unfair labor strike. They 
might have to take the men back. It was entirely 
possible that the Board would order them to take 
the men back. 



276 National Labor Relations Board 

(Testimony of Frederick A. Potruch.) 

After that I told them that I did not know how 
long this would take, whether it would take a 
month, two months or how long. I said that would 
depend upon the procedures and how fast we could 
have hearings, et cetera, how fast the Board would 
move, how fast we could possibly move under the 
circumstances; and I told them that during this 
whole period of time I wanted them to know that 
I had instructed Mr. Howell — and I was telling 
them now — that there could not be any increases 
in wages nor any decreases in wages nor any change 
in their working conditions. And I said that I had 
given those instructions to Mr. Howell, and that I 
would attempt to see that he lived up to them — and 
I have. 

Mr. Nutter: I object to that, Mr. Examiner. I 
move it be stricken. 

Trial Examiner Myers: What? 

Mr. Nutter: "I have." 

The Witness: I am sorry. I said, "I have." 

Trial Examiner Myers: Well, strike it out — if 
you said [347] that. 

The Witness: What I said was that I have up 
to that point. That is, I am only talking about up 
to that point. I couldn't talk about the future. 

Trial Examiner Myers: Just tell us what you 
said. 

The Witness: Then from that point on, after 
explaining that there would be no increases or de- 
creases or changes in the working conditions — and 



vs. Howell Chevrolet Co., etc. 277 

(Testimony of Frederick A. Potruch.) 

I also told them that no men could be discharged 

except for economic reasons or for cause. 

Q. (By Mr. Mcoson) : Did you say why? 

A. I beg your pardon? 

Q. Did you say why? 

A. I said why, that the Taft-Hartley Act — I 
tried to couch it so that they could understand it — 
that the Taft-Hartley Act did not permit an em- 
ployer to do it; it might be prejudicial to them; it 
might influence them, might prejudice them to cast 
their vote for or against — and also that the union 
could not do that. 

And I also told the men that if they did to please 
notify me. And from there I went on to the subject 
of treatment of employees. In other words, I 
pointed out to them — and I was very careful to 
point out to them that this was my own personal 
opinion and not the opinion of management — that 
if I was an employee that I would go to the em- 
ployer, state my problems to him and see what I 
could work out with him; and if the [348] em- 
ployer, to quote, was "a son-of -a-bitch, " and 
wouldn't do anything for me I would go out and 
hang him — to which there was a lot of laughing and 
everybody looked at Mr. Howell. 

I said it wouldn't be until I first went to the boss 
myself and had a talk with him — that I would not 
have gone out and paid anybody to go in and rep- 
resent me until I had first had the opportunity of 
doing my own talking. 



278 National Labor Relations Board 

(Testimony of Frederick A. Potruch.) 

And I also told the men right at that point that 
it had gone too far for any of the men to do that; 
that they had selected voluntarily somebody to rep- 
resent them and that person would do all their 
talking for them at any time they wanted to. 

I also told the men that the union — that we had 
no grievances against the union, we had no griev- 
ances at all against them, that Mr. Howell had 
none against them, that it was their right to join 
a union or not, join a union as they saw fit, and 
we would do nothing to discourage them. I even 
pointed out the example that it was a right to join 
the union just as much as it was my right to join 
the Elks or any organization. 

I also pointed out to them that while it was their 
right to do so, it was also our right under the Act 
to test the Board's jurisdiction. 

That in essence was the first meeting. [349] 

# # ■* 

Q. Now, with respect to the first meeting, when 
did the second meetings take place 

A. I place the second meetings — the second 
meetings were a series of meetings, a group of 
meetings — oh, sometime just prior to the election, 
maybe two weeks prior thereto, possibly ten days 
prior thereto. 

Q. At the time you had these meetings, had the 
election been set by the Regional Board — if you 
know? 

A. The decision had come down from the Board. 



vs. Howell Chevrolet Co., etc. 279 

(Testimony of Frederick A. Potruch.) 

Q. Did you have any documents with you? 

A. I did. 

Q. What documents did you have? 

A. I had a sample ballot sent to me by the Na- 
tional Labor Relations Board; and I also had a 
decision of the National Labor Relations Board in 
Washington. 

Q. All right. What did you say to the employees 
on those occasions ? 

A. Well, prior to speaking to the employees I 
spoke to Mr. Howell or Mr. Bordeau — Mr. Howell 
was out of town, I believe, or not in — and I told 
them that I would like to tell the men — wait a 
'minute, let me correct myself. I am not so sure 
Mr. Howell was out of town or not. 

Well, anyway, I did speak to Mr. Howell or Mr. 
Bordeau [350] and said that I had promised the 
men at the first meeting that I would keep them 
informed if they had not been informed by the 
union of the result of our test, and that I would 
tell them what the decision was; and that was the 
purpose of calling these men together, to tell them 
what the decision of the Board was, and also to 
tell them what the sample ballot was, and then have 
it posted on the door for them to read. 

Meetings were called. At that time Mr. Bordeau 
suggested to me that we have group meetings rather 
than all at one time. I suggested all at one time, 
and Mr. Bordeau said no, he preferred not to be- 
cause he didn't want to disrupt the place. He was 
busy and wanted to go on with his work. It made 



280 National Labor Relations Board 

(Testimony of Frederick A. Potruch.) 

a lot of sense to me. And he wanted to bring them 

in in groups. And I told him to bring them in as 

convenient— used car men, parts department, et 

cetera. 

Those groups ranged from anywheres — to correct 
Mr. Bordeau, for he wasn't there at all times — 
from four to ten men. I do not think there were 
more than ten men on any one time. And I would 
say there were five such group meetings. It is pos- 
sible there were six or four— there were several 
group meetings. 

Q. Tell was what you said. 

A. Nobody introduced me to the men. I didn't 
think it was necessary for me to be introduced be- 
cause I had already spoken to them before. [351] 

First thing I told them was that the National 
Labor Relations Board had handed down a decision, 
and I told them what that decision was : That they 
had found that the Howell Chevrolet Company 
either was engaged or affected commerce and there- 
fore came under their jurisdiction, and that they 
had ordered an election. 

And then I unfolded the ballot and held it up 
before them and said, "This is a sample of the 
ballot." 

And then I took the ballot and read portions of 
it. I read practically, I would say, 90 per cent of 
the ballot. I even told them the time of the election, 
the place of the election. There would be a secret 
ballot. There would be a member of the Board 
present to conduct such an election. 



vs. Howell Chevrolet Co., etc. 281 

(Testimony of Frederick A. Potruch.) 

I also told them that it was important that they 

mark their ballots clearly with an X, either for the 

union or against, not with a check or anything else. 

It was entirely possible for the Board agent to say 

that it was not clearly marked and throw the ballot 

out, and they would lose their ballot as a [352] 

result. 

* * * 

Q. (By Mr. Nicoson) : Mr. Potruch, George 
Smith, a witness for the General Counsel, testified 
that in one of your talks you stated that there 
would be a new deal after the first of the month. 
Did you say that or anything like that? 

A. I didn't say anything like that, or even close 
to that. 

Q. He further stated that at that same time and 
place you further stated that you could not say 
what the new deal would be at that particular time. 
Did you say that or anything like that ? 

A. I didn't say that or anything like it or close 
to it. 

Q. Mr. George Kirkland, a witness for the Gen- 
eral Counsel, during his testimony testified that in 
one of your speeches you said that the union would 
never get a contract out of Howell. Did you say 
that or anything like that? 

A. I did not say that. 

Q. Mr. Fitzhugh, a witness for the General 
Counsel, testified [357] that during your speech or 
your talk you said that the union w T ould not get a 



282 National Labor Relations Board 

(Testimony of Frederick A. Potruch.) 

contract even if they won the election. Did you say 

that or anything like that? 

A. I did not say anything — I did not say that or 
anything like that. I did say, however, that — in 
explaining what an unfair labor charge would be — 
that one of the ways in which to bring the case up 
to the Board to test a question on jurisdiction 
would be by the commission of an unfair labor 

act. [358] 

* * * 

DOYLE CHRISTIAN 

a witness recalled by and on behalf of the respond- 
ent, having been previously duly sworn, was ex- 
amined and testified further as follows: 

Direct Examination 
By Mr. Nicoson: 

Q. You are the same Mr. Doyle Christian that 
appeared and testified previously in this hearing, 
are you not? A. I am. 

Q. What is your business or occupation? 

A. Engine tune-up or electrical mechanic. 

Q. By whom are you employed? 

A. Howell Chevrolet. 

* * ■* 

Q. (By Mr. Nicoson) : if during that pe- 
riod of time you have ever been asked to do the work 
on stoplight switches? A. Yes. 

Q. Has that been periodical or over that entire 
period of time ? [359] A. The entire period. 



vs. Hoivell Chevrolet Co., etc. 283 

(Testimony of Doyle Christian.) 

Q. Do you know of any instances out there in 
the two years that you have been working there 
that the repairing of stoplight switches or any 
work on stoplight switches was assigned to anyone 
but you? A. No. 

Q. Do you do the stoplight switch work on both 
types of stoplight switches? A. Yes. [360] 

# *• # 

Q. (By Mr. Nicoson) : Now, during the two 
years or more that you have been there, do you 
know of any occasion when the stoplight switch 
work was assigned to the brake man? 

A. Never. [361] 

* * * 

Q. Have you had occasion to observe whether 
or not types of brake work are being done on the 
lube rack at the Howell Chevrolet? 

A. Yes, the minor brake adjustments. 

Q. And for what period of time has that been 
going on, if you know? 

A. I know that it has been going on since Mr. 
Bordeau came in as service manager. 

Q. Has Mr. Bordeau ever talked with you about 
the union? A. No, sir. 

Q. Has Mr. Howell talked with you about the 
union? A. No. 

Q. Have any other of the members of manage- 
ment out there discussed the union with you? 

A. No. [362] 



284 National Labor Relations Board 

KENNETH HERRICK 

a witness called by and on behalf of respondent, 
being first duly sworn, was examined and testified 
as follows: 



Direct Examination 
By Mr. Nicoson: 

Q. Mr. Herrick, what is your business or [365] 
occupation ? A. Wheel alignment and brakes. 

Q. By whom are you employed? 

A. Howell Chevrolet. 

Q. And how long have you been employed by 
Howell Chevrolet? 

A. This time, the last time, since last November, 
about 11 months. 

Q. November of 1949? A. '49. 

Q. Had you worked for the Howell Chevrolet 
Company on a previous occasion? 

A. I had. I left in 1948— no, it was in '47. 

Q. 1947? A. Yes. 

Q. How long had you worked for them at that 
stretch? 

A. Approximately a little over two years. 

Q. And you left there on your own volition? 

A. Right. 

Q. And returned November of 1949? 

A. 1949. 

Q. Upon your return to work at Howell 
Chevrolet in November of 1949, what duties were 
assigned to you ? 



vs. Howell Chevrolet Co,, etc. 285 

(Testimony of Kenneth Herrick.) 

A. Wheel alignment and frame [366] straight- 
ening. 

•* *• # 

Q. Now, do you have a machine out there that 
is used for the purpose of straightening frames? 

A. Definitely. We do. 

Q. Is that a complicated operation? 

A. It sometimes is — the use of it. 

Q. And requires some heavy work? 

A. Right. 

Q. You operate that? A. Yes, sir. 

Q. And you operated those types of machines 
before you came back to Howell in November? 

A. Yes, sir. 

Q. Prior to coming back to Howell in Novem- 
ber, 1949, had you also done front end work? 

A. Yes, I had. 

Q. Had you in your other employment done any 
work on brakes ? A. I had. 

Q. How long have you been engaged in working 
on front ends and brakes? 

A. Approximately 10 years or maybe a little 
longer. 

Q. Do you know Claude Leonard? 

A. Yes. 

Q. Did you work in the same shop that he 
did? [367] A. Yes. 

Q. Were you working there in March of 1950? 

A. Yes. 

Q. When Mr. Leonard left? A. Yes. 



286 National Labor Relations Board 

(Testimony of Kenneth Herrick.) 

Q. After Mr. Leonard left, was there any change* 
made in your duties or assignments? 

A. I was assigned the brakes along with my 
wheel alignment jobs. 

Q. Was there any equipment added to your posi- 
tion there? 

A. Equipment? We had the equipment. There 
were a few little changes made, transfers, but 

Q. What were those changes? 

A. Well, the brake drum lathe was transferred 
from the inside shop out to where my department 
is, on the side. 

Q. And after that change, who operated that 
brake drum lathe? A. I did. 

Q. Who operated the front end machine? 

A. I. 

Q. Who operated the frame straightening ma- 
chine ? 

A. I. Only on one occasion I had a fellow come 
in to help me. 

Q. Oh, yes, tell us all about that. 

A. He owed me a little money. Oh, maybe two 
days he was out there. I think two different occa- 
sions I had him, and that [368] was definitely up 
to my personal self. I paid him out of my pocket 
and everything else. Howell did not have anything 
to do with that part of it. He used his own tools, 
w T hat tools he had. On the frame straightening you 
do not need too many tools outside of what goes 
on it. [369] 



vs. Howell Chevrolet Co., etc. 287 

(Testimony of Kenneth Herrick.) 

Q. Could you tell us whether or not there has 
been anybody employed as a brake man at the 
Howell Chevrolet since Mr. Leonard has left? 

A. Definitely not. [370] 

* •* * 

Q. Mr. George Smith has testified that on oc- 
casions in the Playhouse Bar, at which you were 
present, Mr. Bordeau was present and Mr. Smith 
was present, that Mr. Bordeau said to you that if 
the union organized the Howell shop, that Mr. 
Howell would close it down. Did any such con- 
versation ever take place? 

A. I do not believe it did. [371] 

* * * 

Q. Oh, Mr. Herrick, you attended a union meet- 
ing sometime in the latter part of January, 1950, 
did you not? A. January, 1950? 

Q. Yes. A. I did attend a meeting. 

Q. And you signed a card? A. Yes. 

Q. And the next day you showed up wearing a 
union button? 

A. Well, I had a button. I don't remember 
whether I got it that night or not. 

Q. Well, within a very few days after the sign- 
ing of the card? A. Yes. 

Q. You had a button ? A. Yes. 

Q. And you wore it in the shop ? A. Yes. 

Q. Was there ever anything said about the wear- 
ing of that button? A. Nothing said. [373] 



288 National Labor Relations Board 

(Testimony of Kenneth Herrick.) 

Cross-Examination 
By Mr. Nutter: 

Q. Do you recall telling me that Mr. Burgett 
worked chiefly on frame straightening, is that 
right? A. Right, 

Q. Is that his name— Burgett ? [375] 

A. Burgett. 

Trial Examiner Myers: How do you spell his 

name? 

The Witness: B-u-r-g-e-t-t. 

Q. (By Mr. Nutter) : And do you recall telling 
me that while he was working on frame straighten- 
ing you were working on brake jobs? 

A. Right, 

Trial Examiner Myers: Is that so? 

The Witness : Yes — brakes and front ends. [376] 

# * \.# 

JOSEPH F. PRICE 
a witness called by and on behalf of the Employer, 
being first duly sworn, was examined and testified 

as follows: 

* * * 

Direct Examination 
By Mr. Nicoson: 

Q. Mr. Price, what is your business or occupa- 
tion? A. I am a mechanic, I guess. 

Q. What kind of a mechanic, sir? 

A. Automobile. 



vs. Howell Chevrolet Co., etc. 289 

(Testimony of Joseph P. Price.) 
Q. By whom are you employed? 
A. Howell Chevrolet, [385] 



Q. Did any union activity among the employees 
come to your attention while you were employed 
there? 

A. Oh, yes. I heard quite a bit about it. [386] 

* * * 

Q. Did any of your supervisors or officers of the 
company talk with you about any of that literature ? 

A. No, sir.' 

Q. Did any of them during that period of time 
ask you if you were going to join or had joined the 
union? A. No, sir. 

Q. After you signed that card did you wear a 
union button in the plant? A. I did. 

Q. Did any of them ask you about the union 
after that? A. No, sir. 

Q. Mr. Bordeau didn't? A. No, sir. 

Q. Did Mr. Howell? A. No, sir. 

Q. Did any other person out there connected 
with management ask you anything at all about it? 

A. They did not. 

Q. Did you and Kenny Her rick talk to Mr. 
Bordeau about it? 

A. Well, we started to but we didn't get very 
far. 

Q. What did you say to him and what did he say 
to you? 






290 National Labor Relations Board 

(Testimony of Joseph F. Price.) 

A. He just told us that if we wanted to vote for 
a union to go ahead, that was our business. 

Q. Did you see Claude Leonard wear a button 
around there? A. I did. [388] 

Q. George Kirkland? A. Yes. 

Q. And Lee Fitzhugh? 

A. Yes, sir. [389] 

* * ■* 

Q. Do you know whether or not the Howell 
Company has ever employed anybody to take Mr. 
Leonard's place on the brake job? 

A. Have they ever employed anybody? 

Q. Yes. 

A. Not unless it was Kenny; they haven't other 

than that. [390] 

•* # •* 

PHILIP CABALLERO 

a witness called by and on behalf of the Employer, 
being first duly sworn, was examined and testified 

as follows: 

* * * 

Direct Examination 
By Mr. Nicoson : 

Q. What is your business or occupation, Mr. 
Caballero? A. I am an automobile painter. 

Q. By whom are you employed? 
A. Pardon me % 

Q. By whom are you employed? 
A. Howell Chevrolet Company. 



vs. Howell Chevrolet Co., etc. 291 

(Testimony of Philip Caballero.) 

Q. How long have you been there? 

A. Approximately three and a half years. [391] 

Q. There has been some testimony about union 
activity among the employees at Howell Chevrolet. 
Do you know anything about that? 

A. I heard. 

Q. When did it first come to your attention? 

A. I suppose it was around January or so. 

Trial Examiner Myers: This year? 

The Witness : This year. 

Q. (By Mr. Nicoson) : Any particular part of 
January? A. I couldn't say offhand. 

Q. How did it come to your attention? 

A. Through some of the employees in the shop. 

Q. Anyone that you now recall? 

A. Mr. Leonard. 

Trial Examiner Myers: Claud Leonard? 

The Witness: Claud Leonard, yes. 

Q. (By Mr. Nicoson) : Anyone else? 

A. George Kirkland, yes. 

Q. Did you sign a card? A. Yes, I did. 

Q. After you signed the card did you wear a 
union button? A. I did. 

Q. While at work? A. Yes, sir. 

Q. Did Mr. Bordeau or Mr. Howell or any of 
the others from [392] management talk to you 
about not to join the union or wear the union button 
or anything like that? A. No, sir. 

Q. Nothing else was said? A. No, sir. 



292 National Labor Relations Board 

(Testimony of Philip Caballero.) 

Q. (By Mr. Mcoson) : Did Mr. Howell say 
anything to you about the union or your wearing 
of a button or anything about your activities? 

A. No, sir, he did not. 

Q. Did Mr. Bordeau say anything like that to 
you? A. He did not. 

Q. Did any of the others from management say 
voted one way or the other? A. No, sir. 

Q. Did anybody promise you an increase if you 
anything to that effect? A. No, sir. 

Q. Was anything said about an increase by any 
of the people from management? 

A. Not at that time. [393] 

Q. You say "not at that time." Did somebody 
say something about an increase at a later date? 

A. After the banquet at the Mayf air. 

Q. After the banquet at the Mayf air? 

A. Yes, sir. 

Q. That took place after the National Labor Re- 
lations Board held an election out there? 

A. That's right. [394] 



vs. Howell Chevrolet Co., etc. 293 

EICHARD A. WELLS 

a witness called by and on behalf of the Employer, 
being first duly sworn, was examined and testified 
as follows: 

* * * 

Direct Examination 
By Mr. Nicoson: 

Q. What is your business or occupation? 

A. Car washer and polisher. 

Q. By whom are you employed? 

A. Howell Chevrolet. 

Q. How long have you worked for Howell 
Chevrolet? 

A. Twenty-three months and three days. [396] 

Q. Were you employed there around the first of 
the year? A. Yes, I was. 

Q. Did you become aware of any union activity 
around that period of time? A. Yes, I did. 

Q. How did you become aware of it? 

A. Well, by Mr. Leonard and George Kirkland. 

* ■* ■» 

Q. You didn't wear a union button. After you 
signed that card did Mr. Howell speak to you about 
the union in any manner? 

A. No, he didn't. 

Q. Did Mr. Bordeau? A. No. 

Q. Is Mr. Bordeau your supervisor, your boss? 

A. That's right. 

Q. Did anyone else from the management of 
Howell Chevrolet [397] talk with you about the 
union in any manner? A. Not anyone. 



296 National Labor Relations Board 

(Testimony of Richard A. Wells.) 

Q. Isn't it a fact that Mr. Howell came up to 
you before the election and asked you if you would 
vote in favor of the company? A. No. [405] 

Q. Who is your supervisor when you polish 
and wash cars? A. Mr. Bordeau. 

Q. Mr. Bordeau? A. Yes. 

Q. Isn't it a fact that Mr. Bordeau said some- 
thing to you about wearing a union button? 

A. No. 

Q. So you didn't wear one? 

A. No, he never said anything to me about a 
union button. [406] 



GEORGE GREEN 

a witness called by and on behalf of the Employer, 

being first duly sworn, was examined and testified 

as follows: 

* # * 

Direct Examination 
By Mr. Nicoson: 

Q. What is your business or occupation? 

A. Radio repair, sir. 

Q. By whom are you employed? [412] 

A. Howell Chevrolet? 

Q. How long have you been employed there ? 

A. Oh, about nine or ten months. 

Q. Do you recall about when you came there? 

A. Oh, it was either February or March. 

Q. Of 1950? A. Yes. 

Q. Did you learn during your course of employ- 



vs. Howell Chevrolet Co., etc. 297 

(Testimony of George Green.) 

ment out there about any union activity being con- 
ducted among the employees ? A. Yes, sir. 

Q. How did you learn that? 

A. Well, the first day I was there I was ap- 
proached by Barnum and Leonard. 

# #• * 

Q. (By Mr. Nicoson) : After being approached 
by Mr. Barnum and Mr. Leonard, were you talked 
to by Mr. Howell about the union in any form or 
manner? A. No, sir. 

Q. Were you talked to by Mr. Howell in any 
form or manner prior to the time either Mr. Barnum 
or Mr. Leonard talked to you? 

A. No, sir. [413] 

Q. Were you talked to about the union by Mr. 
Bordeau in any shape or form at any time? 

A. No. 

Q. Were you talked to about the union in any 
shape or form by any of the officers of the Howell 
Chevrolet Company? A. No. 

Q. Did Mr. Howell say anything to you about 
any raises ? A. No, sir. 

Q. Did Mr. Howell say that you would get a 
raise if you voted any particular way in the elec- 
tion ? A. No. 

Q. Did Mr. Bordeau talk to you about any 
raises? A. No, sir. 

Q. Did Mr. Bordeau tell you that you would 
get a raise if you voted any particular way in the 
election? A. No, sir. [414] 



298 National Labor Relations Board 

JOSEPH SCIOLORO 
a witness called by and on behalf of the Employer, 
being first duly sworn, was examined and testified 
as follows: 



Direct Examination 
By Mr. Nicoson: 

Q. Mr. Scioloro, what is your business or occu- 
pation'? A. Used car mechanic. 

Q. By whom are you employed? 

A. Mr. Howell. 

Q. Howell Chevrolet Company? 

A. That's right. 

Q. How long have you been so employed? 

A. Right around eleven months, I guess. 

Q. While you were employed by Howell Chevro- 
let Company, did you sign a union card? [415] 

A. I did. 

Q. Either before or after signing the card did 
Mr. Howell say anything to you about the union ? 

A. No, he didn't, 

Q. Did Mr. Bordeau say anything to you about 
the union? A. No, sir. 

Q. Who is your boss over there? 

A. Right now Bob Roberts, I suppose. 

Q. Was Mr. Roberts there in January, February 
and March, 1950? A. Yes. 

Q. Did he say anything to you about the union 
in any way, shape or form ? A. No, sir. 

Q. Did Mr. Howell promise you a raise if you 
voted one way in the election ? A. No, sir. 



vs. Howell Chevrolet Co., etc. 299 

(Testimony of Joseph Scioloro.) 

Q. Did Mr. Bordeau make such a promise? 

A. No, sir. 

Q. Did Mr. Roberts make such a promise? 

A. No, sir. 

Q. Was anything said to you by Mr. Howell 
about a wage increase prior to the election? 

A. No, sir. 

Q. Was anything said to you about a wage in- 
crease by Mr. Bordeau prior to the election? [416] 

A. No, sir. 

Q. Or by Mr. Roberts? 

A. No, sir, nobody said anything. [417] 



ROBERT E. REEVE 

a witness called by and on behalf of the Employer, 

being first duly sworn, was examined and testified 

as follows: 

* * * 

Direct Examination 
By Mr. Nicoson: 

Q. Mr. Reeve, what is your business or occu- 
pation ? A. Automobile lubrication. 

Q. By whom are you employed? 

A. Howell Chevrolet. 

Q. How long have you been employed by Howell 
Chevrolet? 

A. Approximately a year and a half. 



300 National Labor Relations Board 

(Testimony of Robert E. Reeve.) 

Q. Were you employed there at the time Mr. 
Bordeau came on as the service manager? [418] 

A. Yes, sir. 

Q. And had you been employed prior to that 
time ? A. Yes. 

Q. During your tenure with the Howell Chevro- 
let Company, have you done any brake adjust- 
ments? A. Yes, sir. 

Q. On the lube rack? A. Yes, sir. 

Q. How long have you been doing that? 

A. I would say almost the entire length of my 
service there. 

Q. Were you doing that type of work before 
Mr. Bordeau came? A. Yes, sir. 

Q. And you continued to do it after he came, 

is that correct? A. Yes, sir. [419] 

* * * 

Q. Three or four months. While you were em- 
ployed at Howell Chevrolet did Mr. Howell ever 
speak to you about the union in any shape or form ? 

A. No, sir. 

Q. Did he ask you any questions about it? 

A. No, sir. 

Q. Did you have any discussions with him about 
it? A. No, sir. 

Q. Did Mr. Chub Bordeau ever ask you any- 
thing about the union? A. No, sir. 

Q. Did you ever have any discussions with Mr. 
Bordeau about the union? A. No, sir. 

Q. Or did he ever have any with you? 

A. No, sir. [420] 



vs. Howell Chevrolet Co., etc. 301 

(Testimony of Robert E. Reeve.) 

Q. Did any other member of the management 
out there ever have any discussions with you about 
the union in any shape or form? 

A. None whatsoever. 

Q. Did Mr. Howell promise you an increase if 
you voted any particular way in the union? 

A. No, sir. 

Q. Did Mr. Bordeau make such a promise to 
you? A. No, sir. 

Q. Did anyone else in the management make 
any promises to you about voting in the union? 

A. None whatsoever. 

Q. Did anyone tell you that you might be fired 
if you voted any particular way? 

A. No, sir, never. [421] 



CLAUD LEONARD 

a witness recalled by and on behalf of the General 
Counsel, having been previously duly sworn, was 
examined and testified further as follows : 

Direct Examination 

By Mr. Nutter : 

* * * 

Q. Mr. Leonard, I will ask you if you gave a 
union authorization card to Mr. Richard Wells 
during the month of February, 1950? 

A. I did. 

Q. When was that? Will you tell us the circum- 
stances ? 



302 National Labor Relations Board 

(Testimony of Claud Leonard.) 

A. Well, it was the 7th or 8th of February, I 
believe. He said he would take it over and have 
Paschal sign it. That's [425] the last I saw of the 
card until after it was signed. [426] 

* * # 

Q. (By Mr. Nutter) : Mr. Leonard, Mr. Bor- 
deau, a witness called by the Respondent, testified 
that on two occasions during the year 1949 you 
refused to do front end work while working at 
Howell Chevrolet Company. Will you tell us [431] 
about that? 

A. I recall one occasion about front end work 
where I was asked and I had a brake reline that 
I was busy on. That is the only thing that you can 
say I refused because I had a brake job that I was 
working on. 

Q. Will you tell us about that occasion? Who 
was present? 

A. I believe Ed Anthony. I am not sure. 

Q. You say that you were working on a brake 
reline job? A. That's right. 

Q. And do I understand that while you were 
on that job someone requested you to do a front 
end job? A. Yes. 

Q. What was your answer? 

A. I said I was busy on the brakes. The brakes 
was my job. 

Q. Was there anything else said at that time? 

A. No. [432] 



vs. Howell Chevrolet Co., etc. 303 

JACKSON HOWELL 

a witness called by and on behalf of the General 
Counsel having been previously duly sworn, was 
examined and testified further as follows: 

Direct Examination 
By Mr. Nutter: 

Q. Mr. Howell, did you give a statement to the 
Field Examiner of the National Labor Relations 
Board? A. I did. 

Q. In that statement did you say that the only 
reason that Claud Leonard was fired was because 
of lack of work? 

Mr. Nicoson: I suggest, your Honor, that he be 
given the statement. 

Mr. Nutter: I am just asking him. 

Mr. Nicoson: How would he know? 

Mr. Nutter: If he recalls. 

Mr. Nicoson: Pardon me. 

Trial Examiner Myers: Do you recall that, Mr. 
Howell? 

The Witness: I am trying to think of what I 
said to the man concerning 

Trial Examiner Myers: Do you want to see the 
statement ? 

Q. (By Mr. Nutter) : Was Claud Leonard laid 
off for lack of work? A. Yes. 

Q. Was that the only reason? 

A. That's the only reason we gave him. [436] 

Q. Is that the only reason? A. No. 

Q. Did you make a statement to Mr. Norman 



304 National Labor Relations Board 

(Testimony of Jackson Howell.) 
Greer, an agent of the National Labor Relations 
Board, on the 27th day of June, 1950, that Mr. 
Leonard was laid off for lack of work % 

A. I don't think that is the correct date. 

Q. That is not the correct date of the affidavit? 

A. I don't think it is. 

Q. Did you give a statement? 

A. I gave him a statement. 

Q. Did you give any other reasons for the layoff 
of Mr. Leonard to Mr. Greer other than he was 
laid off for lack of work ? 

A. I mentioned in there his seniority as com- 
pared with the seniority of Kenny Herrick. 

Q. Did you mention any other reasons'? 

A. I don't believe so. [437] 



FREDERICK A. POTRUCH 
a witness recalled by and on behalf of the Employer, 
having been previously duly sworn, was examined 
and testified further as follows: 

Direct Examination 
By Mr. Nicoson : [440] 

* -X- * 

Q. Shortly after the date of that letter did you 
on behalf of Mr. Howell attend a conference or an 
informal meeting at the National Labor Relations 
Board? A. I did. [441] 



vs. Howell Chevrolet Co., etc. 305 

(Testimony of Frederick A. Potruch.) 

Q. What did you say? 

A. I simply said I don't think that they had a 
majority at the Howell Chevrolet Company, and 
there were other statements made. I don't think it 
is necessary to go into them unless you want them. 

Q. What do you mean by that statement? 

A. I meant that the union did not have a ma- 
jority of the employees. 

Q. Did you so state? 

A. I so stated. [442] 

* * * 

Q. Did the union produce any proof to you at 
that time that they had a majority? 

A. The union did not produce any proof to me 
of a majority. [443] 



EDWARD M. SKAGEN 

a witness recalled by and on behalf of the General 
Counsel, having been previously duly sworn, was 
examined and testified as follows: 

Direct Examination 
By Mr. Nutter: 

Q. Are you the same Mr. Skagen that testified 
before? A. Yes, I am. 

Q. Mr. Skagen, there has been some testimony 
here that there was a conference held, an informal 
conference, held in the National Labor Relations 
Board's office in the month of February with Mr. 



306 National Labor Relations Board 

(Testimony of Edward M. Skagen.) 
Fred Davis, a Board Field Examiner, and Mr. 
Potruch concerning the Howell Chevrolet case. Did 
you ever attend such a conference? 

A. Yes, I did. 

Q. About when was that? 

A. As I recall, it was in the month of February 
and I [444] believe the exact date would be around 
February the 6th. 

Q. Will you tell us who was present there? 

A. Well, there were two Field Examiners from 
the National Labor Relations Board. One was Mr. 
James Carr and the other one was Mr. Fred Davis 
and Mr. Frederick A. Potruch, myself and I am not 
certain but I believe Tiny Gordon and John Foote 
were present. I am not sure about the latter two, 
however. 

Q. Will you tell us what took place at that con- 
ference ? 

A. Well, there was a mixup that morning. Mr. 
James Carr had a case called Standard Coil Com- 
pany of which Frederick A. Potruch was the at- 
torney, 'and we went down into Mr. Davis' office 
because we thought we could consolidate both cases. 

Trial Examiner Myers: Who is "we"? 

The Witness: The group of us, Frederick A. 
Potruch, myself, Mr. Carr. We went down there 
and found Mr. Davis in his office on the sixth floor 
of the National Labor Relations Board. The reason 
I remember it so well is because Mr. Potruch was 
sitting on the edge of the table and he says, "I am 



vs. Howell Chevrolet Co., etc. 307 

(Testimony of Edward M. Skagen.) 
going to surprise you. I am going to consent to an 
election. We admit that we are in commerce/' and 
the commerce factor had been a big factor in these 
automotive cases at that time. 

Then Mr. Potruch throws his hands up and says, 
' * Da-dee-da-dee-da. ' ' 

All of us w T ere very surprised. I would say that 
everybody including the Field Examiner was speech- 
less because he had [445] admitted commerce. 

Then I says, "Oh, you are going to admit com- 
merce in the Howell Chevrolet V 

Then we were deflated because he was admitting 
commerce in the Standard Coil case and he wasn't 
prepared to discuss, as I remember it, the Howell 
Chevrolet case at all that day and would not admit 
to commerce. 

Q. (By Mr. Nutter) : Will you tell us what was 
said about the Howell case? 

A. I says, "Oh, I thought we were talking about 
the Howell Chevrolet case." 

Frederick A. Potruch, attorney, says, "Now, 
Eddie, you know that I wouldn't admit to commerce 
in one of these automobile cases. We are going to 
have to go to a hearing on that. In fact, I didn't 
even bring a briefcase or any papers over on it." 

Then we went ahead and discussed the Standard 
Coil case and as I remember it we did not discuss 
the Howell Chevrolet case any more that day. 

Q. Was there any other discussion of Howell 
at all I 



308 National Labor Relations Board 

(Testimony of Edward M. Skagen.) 

A. Not that I remember. In fact, I distinctly 
remember there not being any further discussion 
on it. 

Q. Did Mr. Potruch say there that he didn't 
think the union had a majority at the Howell 
Company? A. No, he did not. [446] 



DELMAR A. GORDON 

a witness recalled by and on behalf of the General 
Counsel, having been previously duly sworn, was 
examined and testified further as follows: 

Direct Examination 
By Mr. Nutter : 

Q. You are the same Mr. Gordon that testified 
previously in this hearing? A. I am. 

Q. Mr. Gordon, you have heard the testimony 
about this informal conference in the National Labor 
Relations Board's office in the month of February, 
1950, involving the Howell [447] Chevrolet Com- 
pany? A. I have. 

Q. Did you attend such a conference? 

A. I did. 

Q. Will you tell us what took place at that 
conference ? 

A. John Foote and myself came from the Valley 
that morning to attend the Howell Chevrolet in- 
formal conference. We went into Fred Davis' 
office and was waiting there when Mr. Potruch, 



vs. Howell Chevrolet Co., etc. 309 

(Testimony of Delmar A. Gordon.) 
Mr. Skagen and two other gentlemen came in. 
There were introductions but I didn't recognize 
either of the other men that I had ever met before. 
There was some discussion about — I think Mr. Davis 
brought up the subject of commerce. He said, "Are 
you going to admit commerce in this case,' 7 or some- 
thing to those words. 

Mr. Potruch said, "Yes, we are going to admit 
we are under commerce. I am going to surprise 
all you guys." 

He says, "After all, we advertise on television 
and radio and so forth. Certainly we are in com- 
merce. ' ' 

We all kind of gasped a little bit because of the 
inferences in other cases where he so vigorously 
fought commerce jurisdiction. I don't know who 
said it, but somebody said, "You mean you are 
going to admit commerce in the Howell Chevrolet 
case?" 

Potruch said, "Howell Chevrolet case! Hell, no. 
I am talking about the Standard Coil case." He 
says, "Howell [448] Chevrolet case, I have no 
papers or anything else here about that. I never 
met Mr. How T ell. I don't know what kind of busi- 
ness he is in, whether he sells new cars or used 
cars." 

As far as I remember, there was no more discus- 
sion other than he said that he was going to contest 
jurisdiction of the Board — I mean commerce and 
would have to go to a formal hearing on it. [449] 



310 National Labor Relations Board 

(Testimony of Delmar A. Gordon.) 

Q. Is your answer no that you didn't present 
any proof? A. That's right. 

Q. All right. Did you present any proof to Mr. 
Potruch? 

A. The case was not even discussed. 

Q. Would you mind answering the question? 
Did you or did you not present any proof to Mr. 
Potruch at any time? A. No. [450] 



Certificate 

This is to certify that the attached proceedings 
before the National Labor Eelations Board for the 
21st Region in the matter of: Howell Chevrolet 
Company, and International Association of Ma- 
chinists, District Lodge No. 727, Cases Nos. 
21-CA-794, 21-RC-1146, Los Angeles, California, 
October 31, 1950, Pages 1 to 118, were had as therein 
appears, and that this is the original transcript 
thereof for the files of the Board. 

ACME REPORTING 
COMPANY, 

Official Reporters. 

By /s/ ARNOLD PAUL, 
Field Reporter. 



vs. Howell Chevrolet Co., etc. 311 

In the United States Court of Appeals 
for the Ninth Circuit 

NATIONAL LABOR RELATIONS BOARD, 

Petitioner, 
vs. 

HOWELL CHEVROLET COMPANY, 

Respondent. 

CERTIFICATE OP THE NATIONAL LABOR 
RELATIONS BOARD 

The National Labor Relations Board, by its Ex- 
ecutive Secretary, duly authorized by Section 102.87, 
Rules and Regulations of the National Labor Rela- 
tions Board — Series 6, hereby certifies that the docu- 
ments annexed hereto constitute a full and accurate 
transcript of the entire record of the proceedings 
had before said Board, entitled, "In the Matter of 
Howell Chevrolet Company and International As- 
sociation of Machinists, District Lodge No. 727," 
and, "In the Matter of Howell Chevrolet Company, 
Employer, and International Association of Ma- 
chinists, District Lodge No. 727," the same being 
known as Cases Nos. 21-CA-794 and 21-RC-1146, 
respectively, before said Board, such transcript in- 
cluding the pleadings and testimony and evidence 
upon which the order of the Board in said proceed- 
ings was entered, and including also the finding 
and order of the Board. 

Fully enumerated, said documents attached hereto 
are as follows : 



312 National Labor Relations Board 

(1) Order designating Howard Myers Trial Ex- 
aminer for the National Labor Relations Board, 
dated October 31, 1950. 

(2) Stenographic transcript of testimony taken 
before Trial Examiner Myers on October 31, 1950, 
November 1, 2, and 3, 1950, together with all ex- 
hibits introduced in evidence. 

(3) Trial Examiner's order correcting the rec- 
ord, dated December 4, 1950, with stipulation to 
correct typographical error in transcript annexed, 
together with affidavit of service and United States 
Post Office return receipts thereof. 

(4) Copy of Trial Examiner Myers' Intermedi- 
ate Report, dated December 19, 1950, (annexed to 
item 12 hereof) ; order transferring case to the 
Board, dated December 20, 1950, together with 
affidavit of service and United States Post Office 
return receipts thereof. 

(5) Respondent's letter, dated December 29, 

1950, requesting permission to argue orally before 
the Board. (Denied, see Board's Decision and 
Order dated July 23, 1951, page 2, footnote 2.) 

(6) Respondent's telegram, dated January 4, 

1951, requesting extension of time for filing ex- 
ceptions and briefs. 

(7) Copy of Board's telegram, dated January 
8, 1951, granting all parties extension of time to 
file exceptions and briefs. 



vs. Howell Chevrolet Co., etc. 313 

(8) Respondent's exceptions to the Intermediate 
Report, received January 22, 1951. 

(9) General Counsel's telegram, dated January 
25, 1951, requesting leave to file reply brief. 

(10) Respondent's telegram, dated January 25, 
1951, opposing General Counsel's request for leave 
to file reply brief. 

(11) Copy of Board's telegram, dated January 
25, 1951, granting General Counsel leave to file 
reply brief. 

(12) Copy of Decision and Order issued by the 
National Labor Relations Board on July 23, 1951, 
with Intermediate Report annexed, together with 
affidavit of service and United States Post Office 
return receipts thereof. 

In Testimony Whereof, the Executive Secretary 
of the National Labor Relations Board, being there- 
unto duly authorized as aforesaid, has hereunto set 
his hand and affixed the seal of the National Labor 
Relations Board in the city of Washington, District 
of Columbia, this 15th day of October, 1951. 

/s/ FRANK M. KLEILER, 
Executive Secretary. 

[Seal] NATIONAL LABOR 

RELATIONS BOARD. 



314 National Labor Relations Board 

[Endorsed]: No. 13140. United States Court of 
Appeals for the Ninth Circuit. National Labor 
Relations Board, Petitioner, vs. Howell Chevrolet 
Company, a Corporation, Respondent. Transcript 
of Record. Petition for Enforcement of Order of 
the National Labor Relations Board. 

Piled October 22, 1951. 

/s/ PAUL P. O'BRIEN, 
Clerk of the United States Court of Appeals for the 
Ninth Circuit. 



vs. Hoivell Chevrolet Co., etc. 315 

[Title of Court of Appeals and Cause.] 

STATEMENT OF POINTS ON WHICH 
PETITIONER INTENDS TO RELY 

To the Honorable Judges of the United States 
Court of Appeals for the Ninth Circuit: 

The National Labor Relations Board, Petitioner 
in the above proceeding, in conformity with the 
rules of this Court, hereby states the following 
points as those on which it intends to rely herein : 

1. The Act, as amended, is applicable to the 
respondent. 

2. The Board properly held that respondent vio- 
lated Section 8 (a) (1) of the Act by interfering 
with and coercing its employees by means of inter- 
rogation and threats of reprisal and promise of 
benefit. 

3. The Board properly held that respondent vio- 
lated Section 8 (b) (3) of the Act by discrimina- 
torily discharging Claude Leonard, an employee. 

4. The Board properly held that respondent re- 
fused to bargain, in violation of Section 8 (a) (5) 
of the Act. 

Dated at Washington, D. C, this 15th day of 
October, 1951. 

NATIONAL LABOR 
RELATIONS BOARD, 

By /s/ A. NORMAN SOMERS, 

Assistant General Counsel. 

[Endorsed] : Filed October 22, 1951. 



316 National Labor Relations Board 

[Title of Court of Appeals and Cause.] 

PETITION FOR ENFORCEMENT OF AN 
ORDER OF THE NATIONAL LABOR 
RELATIONS BOARD 

To the Honorable, the Judges of the United States 
Court of Appeals for the Ninth Circuit : 

The National Labor Relations Board, pursuant 
to the National Labor Relations Act, as amended 
(61 Stat. 136, 29 U. S. C, Supp. IV, Sees. 151, 
et seq.), hereinafter called the Act, respectfully 
petitions this Court for the enforcement of its 
order against Respondent, Howell Chevrolet Com- 
pany, Glendale, California, its officers, agents, suc- 
cessors, and assigns. The proceedings resulting in 
said order are known the records of the Board as 
"In the Matter of Howell Chevrolet Company and 
International Association of Machinists, District 
Lodge No. 727, Case No. 21-CA-794"; and "In the 
Matter of Howell Chevrolet Company, Employer, 
and International Association of Machinists, Dis- 
trict Lodge No. 727, Petitioner, Case No. 21-RC- 
1146.' ' 

In support of this petition the Board respectfully 
shows : 

(1) Respondent is a California corporation 
engaged in business in the State of California, 
within this judicial circuit where the unfair labor 
practices occurred. This Court therefore has juris- 
diction of this petition by virtue of Section 10 (e) 
of the National Labor Relations Act, as amended. 



vs. Hotvell Chevrolet Co., etc. 317 

(2) Upon all proceedings had in said matter 
before the Board as more fully shown by the entire 
record thereof certified by the Board and filed 
with this Court herein, to which reference is hereby 
made, the Board on July 23, 1951, duly stated its 
findings of fact and conclusions of law, and issued 
an order directed to the Respondent, its officers, 
agents, successors, and assigns. So much of the 
aforesaid order as relates to this proceeding pro- 
vides as follows: 

Order 

Upon the entire record in these cases, and pursu- 
ant to Section 10 (c) of the National Labor Rela- 
tions Act, the National Labor Relations Board 
hereby orders that the Respondent, Howell Chev- 
rolet Company, Glendale, California, its officers, 
agents, successors, and assigns, shall : 

1. Cease and desist from: 

(a) Discouraging membership in International 
Association of Machinists, District Lodge No. 727, 
or any other labor organization of its employees, by 
discriminating in regard to their hire or tenure of 
employment, or any term or condition of employ- 
ment, because of their membership in, or activity 
on behalf of, any such labor organization. 

(b) By means of interrogation, threats of re- 
prisal, promises of benefit, or in any other manner, 
interfering with, restraining, or coercing its em- 
ployees in the exercise of the right to self-organi- 
zation, to form labor organizations, to join or assist 



318 National Labor Relations Board 

International Association of Machinists, District 
Lodge No. 727, or any other labor organization, to 
bargain collectively through representatives of their 
own choosing, and to engage in concerted activities 
for the purpose of mutual aid or protection as 
guaranteed in Section 7 of the Act, or to refrain 
from the exercise of such rights. 

(<c) Refusing, upon request, to bargain collec- 
tively with International Association of Machinists, 
District Lodge No. 727, as the exclusive representa- 
tive of all its employees at its Glendale, California, 
plant, excluding salesmen, office and clerical em- 
ployees, professional employees, guards, and super- 
visors as defined by the National Labor Relations 
Act. 

2. Take the following affirmative action which 
the Board finds will effectuate the policies of the 
Act: 

(a) Upon request, bargain collectively with 
Internationa] Association of Machinists, District 
Lodge No. 727, as the exclusive representative of all 
the employees in the above-described appropriate 
unit, and if an understanding is reached, embody 
such understanding in a signed agreement. 

(b) Offer to Claude Leonard immediate and full 
reinstatement to his former or a substantially 
equivalent position without prejudice to his sen- 
iority or other rights or privileges. 

(c) Make whole Claude Leonard, in the manner 
set forth in the section entitled "The Remedy," for 
any loss of pay which he may have suffered by 



vs. Howell Chevrolet Co., etc. 319 

reason of the Respondent's discrimination against 
him. 

(d) Upon request, make available to the Board 
or its agents for examination and copying, all pay 
roll records, social security payment records, time 
cards, personnel records and reports, and all other 
records necessary to analyze the amount of back 
pay due and the right of reinstatement under the 
terms of this Order. 

(e) Post in its plant at Glendale, California, 
copies of the notice attached hereto and marked 
" Appendix A." 20 Copies of said notice to be fur- 
nished by the Regional Director for the Twenty- 
first Region, shall, after being duly signed by the 
Respondent, be posted by the Respondent immedi- 
ately upon receipt thereof and be maintained by it 
for sixty (60) consecutive days thereafter in con- 
spicuous places, including all places where notices 
to employees are customarily posted. Reasonable 
steps shall be taken by the Respondent to insure 
that said notices are not altered, defaced, or covered 
by any other material. 

(f) Notify the Regional Director for the 
Twenty-first Region, in writing, within ten (10) 
days from the date of this Order what steps the 
Respondent has taken to comply herewith. 



20 In the event that this Order is enforced by a 
decree of a United States Court of Appeals, there 
shall be inserted in the notice, before the words, 
"A Decision and Order," the words, "A Decree of 
the United States Court of Appeals Enforcing." 



320 National Labor Relations Board 

(3) On July 23, 1951, the Board's Decision and 
Order was served upon Respondent by sending a 
copy thereof postpaid, bearing Government frank, 
by registered mail, to Respondent's counsel. 

(4) Pursuant to Section 10 (e) of the National 
Labor Relations Act, as amended, the Board is 
certifying and filing with this Court a transcript 
of the entire record of the proceedings before the 
Board, including the pleadings, testimony and evi- 
dence, findings of fact, conclusions of law, and order 
of the Board. 

Wherefore, the Board prays this Honorable Court 
that it cause notice of the filing of this petition 
and transcript to be served upon Respondent and 
that this Court take jurisdiction of the proceeding 
and of the questions determined therein and make 
and enter upon the pleadings, testimony and evi- 
dence, and the proceedings set forth in the tran- 
script and upon so much of the order made there- 
upon as set forth in paragraph (2) hereof, a decree 
enforcing in whole said order of the Board, and 
requiring Respondent, its officers, agents, successors, 
and assigns to comply therewith. 

NATIONAL LABOR 
RELATIONS BOARD, 

By /s/ A. NORMAN SOMERS, 

Assistant General Counsel. 

Dated at Washington, D. C, this 15th day of 
October, 1951. 



vs. Howell Chevrolet Co., etc. 321 

Appendix 

Notice to All Employees 

Pursuant to a Decision and Order 

of the National Labor Eelations Board, and in order 
to effectuate the policies of the National Labor 
Relations Act, we hereby notify our employees 
that: 

We Will Not discourage membership in Inter- 
national Association of Machinists, District Lodge 
No. 727, or in any other labor organization of our 
employees, by discriminating in regard to their hire 
or tenure of employment, or any term or condition 
of employment, because of their membership in, or 
activity on behalf of, any such labor organization. 

We Will Not by means of interrogation, threats of 
reprisal, promises of benefit, or in any manner, 
interfere with, restrain, or coerce our employees 
in the exercise of their right to self-organization, 
to form labor organizations, to join or assist Inter- 
national Association of Machinists, District Lodge 
No. 727, or any other labor organization, to bargain 
collectively through representatives of their own 
choosing, to engage in concerted activities for the 
purpose of collective bargaining or other mutual 
aid or protection or to refrain from any or all such 
activities except to the extent that such rights may 
be affected by an agreement requiring membership 
in a labor organization as a condition of employ- 



322 National Labor Relations Board 

ment as authorized in Section 8 (a) (3) of the 
National Labor Relations Act. 

We Will offer to Claude Leonard, immediate rein- 
statement to his former or substantially equivalent 
position without prejudice to seniority or other 
rights and privileges previously enjoyed, and will 
make him whole for any loss of pay he may have 
suffered as a result of the discrimination against 
him. 

We Will bargain collectively, upon request, with 
the above-named union as the exclusive representa- 
tive of all our employees in the bargaining unit 
described herein, with respect to rates of pay, wages, 
hours of work, or other terms and conditions of 
employment, and if an understanding is reached, 
embody such understanding is a signed agreement. 
The Bargaining Unit is 

All our employees, excluding salesmen, office 
and clerical employees, professional employees, 
guards, and supervisors as denned by the Na- 
tional Labor Relations Act. 

All our employees are free to become, or refrain 
from becoming members of the above-named union 
or any other labor organization, except to the ex- 
tent that this right may be affected by an agree- 
ment in conformity with Section 8 (a) (3) of the 
amended Act. We will not discriminate in regard 
to hire or tenure of employment or any term or 
condition of employment against any employees be- 



vs. Howell Chevrolet Co., etc. 323 

cause of membership in or activity on behalf of 
any labor organization. 

Dated 

HOWELL CHEVROLET 
COMPANY, 

(Employer). 

By , 

(Representative) (Title) . 

This notice must remain posted for 60 days from 
date hereof, and must not be altered, defaced, or 
covered by any other material. 

[Endorsed] : Piled October 22, 1951. 



[Title of Court of Appeals and Cause.] 

RESPONDENT'S ANSWER TO PETITION 
FOR ENFORCEMENT OF AN ORDER OF 
THE NATIONAL LABOR RELATIONS 
BOARD 

To the Honorable, the Judges of the United States 
Court of Appeals for the Ninth Circuit: 

Comes now Howell Chevrolet Company, respond- 
ent in the above-entitled matter, and for answer to 
the petition for enforcement of an order of the 
National Labor Relations Board, denies, admits and 
alleges as follows: 

I. 

Respondent admits that it is a corporation organ- 
ized and existing under and by virtue of the laws 



324 National Labor Relations Board 

of the State of California, and is engaged in busi- 
ness in the State of California, within the judicial 
circuit of this Honorable Court, but denies, gener- 
ally and specifically, that any unfair labor practices 
occurred within that judicial circuit or any other 
judicial circuit. Respondent further admits that 
by virtue of Section 10 (e) of the National Labor 
Relations Act, as amended, this Honorable Court 
has jurisdiction to review purported orders of the 
National Labor Relations Board. 

II. 

Respondent admits that on or about July 23, 1951, 
the National Labor Relations Board issued a pur- 
ported order in substance and form, as alleged in 
the aforesaid petition, but denies that said pur- 
ported order is valid, and alleges that said purported 
order is contrary to law and is not sustained by 
findings of fact which are supported by substantial 
evidence on the record considered as a whole. 

III. 

Further answering, respondent alleges that the 
purported order and findings of the National Labor 
Relations Board to the effect that respondent is 
engaged in the business affecting commerce within 
the meaning of the National Labor Relations Act, 
as amended, is not supported by substantial evi- 
dence on the record considered as a whole and is 
therefore void and of no effect. 

IV. 

Further answering, respondent alleges that said 



vs. Howell Chevrolet Co., etc. 325 

purported order of the National Labor Relations 
Board is unconstitutional and void in that it de- 
prives respondent of rights guaranteed to it by the 
Fifth Amendment to the United States Constitu- 
tion. 

V. 
Further answering, respondent alleges that the 
record does not contain substantial evidence on the 
record considered as a whole sufficient in law to 
support said purported order of the National Labor 
Relations Board, or any part thereof. 

VI. 

Respondent admits that on or about July 23, 1951, 
respondent received by registered mail a copy of 
the purported order of the National Labor Rela- 
tions Board. 

VII. 

Respondent admits that the National Labor Re- 
lations Board has certified and filed with this Court 
a transcript of the record of the proceedings before 
the Board, including the pleadings, testimony in 
evidence adduced before the Trial Examiner, but 
denies that the findings of fact, conclusions of law 
and order of the National Labor Relations Board 
have been made upon such record, and alleges that 
said findings of fact and conclusions of law and 
order of the Board are contrary to Section 10 of 
the National Labor Relations Act, as amended. 

Wherefore, respondent having fully answered 
prays that the petition for enforcement of the 



326 National Labor Relations Board 

order of the National Labor Relations Board be 
dismissed. 

/s/ JAMES M. NICOSON, 
CARTER & POTRUCH, 

By /s/ FREDERICK A. POTRUCH, 
Attorneys for Respondent, Howell Chevrolet Com- 
pany. 

Duly verified. 

Affidavit of Service by Mail attached. 

[Endorsed]: Filed November 5, 1951. 



[Title of Court of Appeals and Cause.] 

STATEMENT OF POINTS ON WHICH 
RESPONDENT INTENDS TO RELY 

To the Honorable, the Judges of the United States 
Court of Appeals for the Ninth Circuit : 

The respondent in the above-entitled matter, in 
conformity of the rules of this Court, hereby states 
the following points as those on which it intends 
to rely herein : 

(1) That the National Labor Relations Board 
does not have jurisdiction over respondent, or its 
business. 

(2) That respondent is not engaged in a busi- 
ness affecting commerce within the meaning of the 
National Labor Relations Act, as amended. 



vs. Howell Chevrolet Co., etc. 327 

(3) That the proceedings before the Board are 
unconstitutional and void in that they have deprived 
respondent of rights granted to it by the Fifth 
Amendment of the United States Constitution. 

(4) That respondent was not accorded a fair 
and impartial hearing before an impartial Trial 
Examiner and was not afforded the requisites of due 
process of law, as guaranteed to it by the Fifth 
Amendment of the Constitution of the United 
States. 

(5) That the Board's findings of fact and con- 
clusions of law that respondent had interfered with 
and coerced its employees in violation of Section 
8 (a) (1) of the National Labor Relations Act was 
not supported by substantial evidence on the record 
considered as a whole and therefore is void and of 
no effect, 

(6) That the Board's findings of fact and con- 
clusions of law that respondent did discriminatorily 
discharge Claude Leonard in violation of Section 
8 (a) (3) of the National Labor Relations Act is 
not supported by substantial evidence on the record 
considered as a whole and is therefore void and of 
no effect. 

(7) That the findings of fact and conclusions of 
law of the Board that respondent had refused to 
bargain in violation of Section 8 (a) (5) of the Na- 
tional Labor Relations Act, as amended, is not sup- 
ported by substantial evidence on the record con- 
sidered as a whole and is therefore void and of no 
effect. 



328 National Labor Relations Board 

Dated at Los Angeles, California, this 1st day 
of November, 1951. 

HOWELL CHEVROLET 
COMPANY, 

By /s/ JAMES M. NICOSON, 
CARTER & POTRUCH, 

By /s/ FREDERICK A. POTRUCH, 

Attorneys for Howell 
Chevrolet Company. 

Affidavit of Service by Mail attached. 
[Endorsed] : Filed November 5, 1951. 



[Title of Court of Appeals and Cause.] 

ORDER TO SHOW CAUSE 

United States of America — ss. 

The President of the United States of America 

Howell Chevrolet Company, 1000 South Brand 
Boulevard, Glendale, California, and Interna- 
tional Association of Machinists, District Lodge 
No. 727, Att: Messrs. E. M. Skagen and Delmar 
Gordon, 904 Van Nuys Bldg., Los Angeles (14) 
California 

Greeting : 

Pursuant to the provisions of Subdivision (e) 
of Section 160, U.S.C.A. Title 29 (National Labor 
Relations Board Act, Section 10(e)), you and each 
of you are hereby notified that on the 22nd day of 



vs. Howell Chevrolet Co., etc. 329 

October, 1951, a petition of the National Labor Re- 
lations Board for enforcement of its order entered 
on July 23, 1951, in a proceeding known upon the 
records of the said Board as "In the Matter of 
Howell Chevrolet Company and International As- 
sociation of Machinists, District Lodge, No. 727, 
Case No. 21-CA-794; and In the Matter of Howell 
Chevrolet Company, Employer and International 
Association of Machinists, District Lodge No. 727, 
petitioner, Case No. 21-RC-1146," and for entry 
of a decree by the United States Court of Appeals 
for the Ninth Circuit, was filed in the said United 
States Court of Appeals for the Ninth Circuit, copy 
of which said petition is attached hereto. 

You are also notified to appear and move upon, 
answer or plead to said petition within ten days 
from date of the service hereof, or in default of 
such action the said Court of Appeals for the Ninth 
Circuit will enter such decree as it deems just and 
proper in the premises. 

Witness, the Honorable Fred M. Vinson, Chief 
Justice of the United States, this 22nd day of Oc- 
tober in the year of our Lord one thousand, nine 
hundred and fifty-one. 

[Seal] /s/ PAUL P. O'BRIEN, 

Clerk of the United States Court of Appeals for 
the Ninth Circuit. 

Returns on service of Writ attached. 
[Endorsed] : Filed November 7, 1951. 



No. 13140 



In the United States Court of Appeals 
for the Ninth Circuit 



National Labor Relations Board, petitioner 

v. 
Howell Chevrolet Company, respondent 



ON PETITION FOR ENFORCEMENT OF AN ORDER OF THE 
NATIONAL LABOR RELATIONS BOARD 



BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD 



GEORGE J. BOTT, 

General Counsel, 
DAVID P. FINDLING, 

Associate General Counsel, 
A. NORMAN SOMERS, 

Assistant General Counsel, 
MARCEL MALLET-PREVOST, 
WILLIAM J. AVRUTIS, 

Attorneys, 
National Labor Relations Board. 



FILED 

FEB - 4 1952 

PAUL P. O'BRIEN , 
CLERK 



I X D E X 

Page 

Jurisdiction 1 

Statement of the case 2 

I. The Board's findings of fact 2 

A. The Union's majority status and requests for recog- 

nition and a bargaining conference 3 

B. Respondent's refusal to recognize the Union and 

efforts to destroy its majority 3 

1. Threats of discharge and shut-down by 

Foreman Ogen and Service Manager 
Bordeau 4 

2. Attorney Potruch's announcement of re- 

spondent's anti-union position and firm 
intention not to bargain 5 

3. President Howell's promises of pay increases 

and solicitation of employee rejection of 

the Union 7 

C. Respondent's discharge of Union Steward Leonard, _ 7 

1. Leonard's long and varied experience 7 

2. Leonard's outstanding union activity and 

respondent's threats of discharge for sup- 
porting the Union 9 

3. Respondent's discharge of Leonard, allegedly 

for economic reasons 10 

II. The Board's conclusions 11 

III. The Board's order 12 

Argument 13 

I. Substantial evidence supports the Board's finding that re- 
spondent interfered with, restrained and coerced its em- 
ployees in violation of Section 8 (a) (1) of the Act 13 

II. Substantial evidence supports the Board's finding that 
respondent refused to bargain with the Union, in violation 
of Section 8 (a) (5) and (1) of the Act 17 

A. The Union represented a majority of the employees 

in an appropriate unit 17 

B. Respondent's unlawful refusal to bargain 20 

III. Substantial evidence supports the Board's finding that 

respondent discharged Employee Leonard because of his 
activities in behalf of the Union, in violation of Section 

8 (a) (3) and (1) of the Act 22 

Conclusion 25 

Appendix 26 

985239—52 1 (I) 



II 

AUTHORITIES CITED 

Page 

^Brezner Tanning Co., 50 N. L. R. B. 894, enforced, 141 F. 2d 62 
(C. A. 1) 

W T Grant Company, 94 N. L. R. B. No. 145, No. 13133 20 

H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514 14, 15 

International Assn. of Machinists v. N. L. R. B., 311 U. S. 72___ 17 
Joy Silk Mills v. N. L. R. B., 185 F. 2d 732 (C. A. D. C), cer- 
tiorari denied, 341 U. S. 914 15,20,22 

Lebanon Steel Foundry Co. v. N. L. R. B., 130 F. 2d 404 (C. A. D. 

C), certiorari denied, 317 U. S. 659 19 

May Department Stores Co. v. N. L. R, B., 326 U. S. 376 20 

Medo Photo Supply Corp. v. N. L. R, B., 321 U. S. 678 15 

N L R B v. Biles-Coleman Lumber Co., 98 F. 2d 18 (C. A. 9)- 22 

N. L. R. B. v. /. G. Boswell Co., 136 F. 2d 585 (C. A. 9) 14, 15, 23 

N. L. R. B. v. Bradford Dyeing Assn., 310 U. S. 318 14 

N. L. R. B. v. Conover Motor Co., decided November 5, 1951 (C. A. 

10), 29 L. R. R. M. 2044 2 

N L. R. B. v. Davis Motors, Inc., decided November 5, 1951 1 

'(C. A. 10),29L. R. R. M. 2046 2 

N L R B.v. Fitzpatrick and Weller, Inc., 138 F. 2d 697 (C. A. 2). 15 

N L R B. v. Ford, 170 F. 2d 735 (C. A. 6) 15 

N. L. R. B. v. Germain Seed Co., 134 F. 2d 94 (C. A. 9) 17 

N. L. R. B. v. Holtville Ice & Cold Storage Co., 148 F. 2d 168, 

(C. A. 9) H 

N. L. R. B. v. Jones & Laughlin Steel Corp., 301 U. S. 1 20 

N. L. R. B. v. Ken Rose Motors, Inc., decided January 31, 1952 

(C. A. 1) f . Jt 

N L R B v. Letlie Lee, Inc., 140 F. 2d 243 (C. A. 9) 14, 15 

N L R B v Long Lake Lumber Co., 138 F. 2d 363 (C. A. 9) — - 14 

N. L. R. B. v. Poison Logging Co., 136 F. 2d 314 (C. A. 9) 14 

N. L. R. B. v. Security Warehouse & Cold Storage Co., 136 F. 2d 

829 (C. A. 9) 14 ' 17 

N. L. R. B. v. Star Beef Co., decided December 15, 1951 (C. A. 1), 

29 L. R. R. M. 2190 22 

N L R B.v. State Center Warehouse Co., decided November 27, 

1951 (C. A. 9), 29 L. R. R. M. 2209 22 

N. L. R. B. v. Townsend, 185 F. 2d 378 (C. A. 9), certiorari denied, 

341 U. S. 909__- 2 

N. L. R. B. v. Everett Van Kleek & Company, 189 F. 2d 516 

(C A. 2) ^ 

N. L. R. B. v.Fred P. Weissman Co., 170 F. 2d 952 (C. A. 6), cer- 
tiorari denied, 336 U. S. 972 17 

Ohio Power Co. v. N. L. R. B., 176 F. 2d 385 (C. A. 6), certiorari 

denied, 338 U. S. 899 :~"1"~~" 11 

M. H. Ritzwoller Co. v. N. L. R, B., 114 F. 2d 432 (C. A. 7).— 15 

Sport Specially Shoemakers, Inc., 77 NLRB 1011 20 

Texas Co. v. N. L. R. B., 135 F. 2d 562 (C. A. 9) 14 

Williams Motor Co. v. N. L. R. B., 128 F. 2d 960 (C. A. 8) 2 



Ill 

Statutes: Page 

National Labor Relations Act, as amended (61 Stat. 136, 29 

U. S. C, Supp. IV, Sees. 151, et seq.) 1, 26 

Section 2 (3) 26 

Section 2 (11) ,__ 26 

Section 7 26 

Section 8 (a) (1) 2, 13, 17, 22, 27 

Section 8 (a) (3) 2,22,27 

Section 8 (a) (4) 13 

Section 8 (a) (5) 2,17,27 

Section 9 (a) 27 

Section 10 (a) 27 

Section 10 (c) 28 

Section 10 (e) 1,28 

Miscellaneous: 

Wigmore, Evidence, 3d Ed., Sec. 2134 19 

Restatement of the Law of Agency, Sees. 17, 20, 82, 84 19 



In the United States Court of Appeals 
for the Ninth Circuit 



No. 13140 



National Labor Relations Board, petitioner 

v. 
Howell Chevrolet Company, respondent 



ON PETITION FOR ENFORCEMENT OF AN ORDER OF THE 
NATIONAL LABOR RELATIONS BOARD 



BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD 



JURISDICTION 



This case is before the Court upon petition of the 
National Labor Relations Board pursuant to Section 
10 (e) of the National Labor Relations Act, as 
amended (61 Stat. 136, 29 U. S. C, Supp. IV, Sees. 
151, et seq.), 1 for enforcement of its order (R. 64-70) 2 
issued July 23, 1951, against respondent Howell 
Chevrolet Company, following the usual proceedings 
under Section 10 of the Act. The Board's Decision 
and Order are reported in 95 NLRB No. 62. This 
Court has jurisdiction under Section 10 (e) of the 

1 The pertinent provisions of the Act are set forth in the 
Appendix, infra. 

2 In the following statement, whenever a semicolon appears, 
record references preceding the semicolon are to the Board's find- 
ings; succeeding references are to the supporting evidence. 

(1) 



Act, the unfair labor practices having occurred within 
this judicial circuit, at respondent's place of business 
in Glendale, California. 3 

STATEMENT OF THE CASE 

I. The Board's findings of fact 

The Board's findings that respondent engaged in 
acts of interference and coercion, refused to bargain 
with its employees' representative, and discharged an 
employee because of his union activities, in violation 
of Section 8 (a) (1), (3), and (5) of the Act, may be 
summarized as follows: 

3 Respondent, a California corporation, operates an automobile 
agency and repair and service shop at Glendale, California, as 
an integral part of the national system of distribution of Chevrolet 
Motor Division, General Motors Corporation. It is one of a lim- 
ited number of dealers authorized to sell new Chevrolet motor 
vehicles, parts, and accessories under a dealers agreement with 
Chevrolet Motor Division, General Motors Corporation, pursuant 
to which the latter exercises control over the respondent's capital 
requirements, place of business, hours, servicing facilities, per- 
sonnel, signs, and local area advertising (R. 15-16, 55-56; 3, 9, 
75-78, 89-90) . Chevrolet Division, General Motors Corporation 
supplies respondent with new cars and trucks from an assembly 
plant maintained at Van Nuys, California. During the fiscal year 
ending September 30, 1945, approximately 43 percent of the com- 
ponent parts shipped to said plant were obtained from points 
located outside the State. During the same year, respondent's 
purchases from Chevrolet Motor Division, General Motors Cor- 
poration exceeded $1,500,000 (R. 16-17; 92-97). It is clear that 
respondent is engaged in commerce within the meaning of the 
Act. N. L. R. B. v. Townsend, 185 F. 2d 378, 382 (C. A. 9), 
certiorari denied, 341 U. S. 909; N. L. R. B. v. Ken Rose Motors, 
Inc., decided January 21, 1952 (C. A. 1) ; N. L. R. B. v. Conover 
Motor Co., decided November 5, 1951 (C. A. 10), 29 LRRM 2044, 
2045 ; N. L. R. B. v. Davis Motors, Inc., decided November 5, 1951 
(C. A. 10) , 29 LRRM 2046. Cf. Williams Motor Co. v. N. L. R. B., 
128 F. 2d 960, 962-964 (C. A. 8). 



A. The Union's majority status and request for recognition and a 
bargaining conference 

On January 30, 1950, a number of respondent's 
employees attended a meeting of the Union 4 and 
elected Claude Leonard, one of their number, senior 
chairman or shop steward (R. 20-21; 114—116). By 
the following day, 15 of the 28 employees in the bar- 
gaining unit 5 had designated the Union as their col- 
lective bargaining representative (R. 20, 21; 115-130, 
161-162, 192-193, 204-205, 216-217, 218-220, 221- 
222, 224-225, 232-234, 101-102, 90-91, 193-194, 195, 
102, 163, 205-206, 218-219). 6 The Union thereupon 
wrote respondent that a majority of its employees had 
chosen it as their collective bargaining representative 
and asked for recognition and a conference to discuss 
a collective bargaining agreement (R. 21; 214—215). 
On the same day, January 31, the Union filed a repre- 
sentation petition with the Board (R. 21). The Board 
subsequently conducted an election on June 1 (R. 12). 

B. Respondent's refusal to recognize the Union and efforts to destroy its 

majority 

Respondent admittedly failed to answer the union's 
letter which it received the next day, February 1 (R. 
21, 61; 213-215, 216). Indeed, respondent's president, 

4 International Association of Machinists, District Lodge No. 
727. 

5 The bargain unit found appropriate by the Board consisted 
of all respondent's employees except supervisors and certain non- 
operating employees (R. 18 ; 5, 9) . 

6 The Board found that Frank Ogen, foreman of the body shop 
named in respondent's list of employees working for it on January 
31, 1950 (R. 101-102), was a supervisor (see infra, pp. 15-17) and 
therefore not to be considered an "employee" within the bargain- 
ing unit (R. 19-22, 57). 



its attorney, its service manager, and the foreman of 
its body shop all acted to bring home to the employees the 
futility of their supporting the Union and the advan- 
tage which would accrue to them if they kept away 
from it. 

1. Threats of discharge and shut-down by Foreman Ogen and Service 

Manager Bordeau 

On January 31, the morning following Leonard's 
election as shop steward at the Union meeting, Leon- 
ard and other employees appeared at work wearing 
Union buttons (E. 21; 120-121, 251). A day or two 
later, Employee Arnold asked Foreman Ogen "what 
he thought about the guys going in [the union], 7 ' and 
the foreman replied that "they better watch out for 
their jobs, because [President] Howell said to fire 
them all that are wearing buttons" (R. 23, 57; 204- 
206). Leonard, whose Union button was inscribed 
"Senior Chairman" (R. 21; 120-121, 189, 251), con- 
tinued to wear it while at work, and several days later 
Foreman Ogen told him "to get away" from him 
"with that button on," because he (Ogen) "didn't 
want to get fired" (R. 22, 57; 131). When Leonard 
replied that nobody was going to be fired because of 
the buttons, Ogen said that President Howell had told 
him that "he was going to fire anybody that joined the 
union" (R. 22, 57; 131, 236). Leonard and Kirkland, 
another employee, later asked Foreman Ogen where 
he had gotten his information that all the employees 
who joined the Union were going to be fired, and Ogen 
repeated that President Howell had told him so the 
previous night (R. 22-23, 57; 163-164). Ogen made 
like remarks to Employee Smith who worked in his 



department. Several times, some weeks before the 
Board conducted the election of June 1, he told Smith 
that any man who joined the Union would be fired, 
that he himself never had worked in a union shop, 
never would, and that he would not have any union 
men working for him (R. 23, 57; 194-196). In addi- 
tion, during this period, Ogen asked Smith what he 
"was going to do about the Union, " whether he "was 
in the Union, ' ' and if Employee Kirkland had induced 
him to join (ibid). Respondent neither called Fore- 
man Ogen to deny these remarks nor explained his 
absence (R. 22). 

During the same period Service Manager Bordeau 
told a group of employees that "if the union was 
defeated, everyone would get a raise " (R. 31, 58; 
228-230, 250), and warned Employee Herrick that 
"If the union went in, Howell would shut his doors" 
(R. 31, 58; 196-197). 

2. Attorney Potruch' s announcement of respondent's antiunion position 
and firm intention not to bargain 

About the latter part of March 1950, respondent 
assembled all its shop employees (R. 23; 270-277). 
President Howell introduced respondent's attorney, 
Frederick A. Potruch, to the meeting and told the 
employees that he would explain respondent's labor 
relations policies (R. 23-24; 237-238, 271-272, 167, 
179-180, 88). 

In a lengthy talk Potruch told the employees that 
respondent did not like "having anyone step in and 
tell them what to do and what not to do," and in- 
tended to challenge the jurisdiction of the Board, 
fighting the case to its "last dollar" and up to the 

985239—52 2 



6 

Supreme Court, if the Board did not uphold respond- 
ent in its position (R. 24, 25, 27, 61, 62; 272-275, 167- 
168, 172, 180). He further declared that if the Board 
asserted jurisdiction over respondent, the only way 
to get an adequate test on the question of jurisdiction 
would be to go into the Circuit Court of Appeals 
and that: 

It might even necessitate * * * that for 
any company, not necessarily Howell, to get a 
case into the United States Circuit Court of 
Appeals, it might be necessary to do something 
to be cited for an unfair act under the National 
Labor Relations Act; that someone might have 
to be discharged, either on a friendly basis 
or even deliberately and then the charge 
brought * * * (R. 25, 58; 274). 

Potruch also stated that the employees did not need 
a union since this was a small establishment; that 
the employees would never get a union contract from 
Howell; that the employees would have to go out on 
strike to obtain a contract ; and that respondent could 
not make any change in wages or other working con- 
ditions unless it consulted the Union, but "by God the 
Company wouldn't do that." (R. 25-26, 56, 58; 167- 
168, 180; 175-176; 183.) Potruch added that if he 
were an employee with any problems he would go 
to the employer individually and work them out with 
him personally (R. 27, 62; 277-278). However, he 
pointed out, the employees "had gone too far" to 
be free to speak for themselves any more, for they 
had voluntarily selected somebody to represent them 
and "do all their talking for them at any time they 
wanted to" (R. 62; 277-278). Potruch also made it 
plain to the employees that even if the Union, already 



so chosen by the employees, won the election, respond- 
ent still would refuse to bargain with it and might 
employ such refusal as a way to obtain a court test 
of the Board's jurisdiction under the Act (E. 26-27, 
56, 58; 185, 171-172). 

Potruch again visited the plant about two weeks 
before June 1, the election date (R. 28; 200-201). On 
this occasion, while talking about the election, he 
told a group of employees that " There would be a 
new deal after the first of the month" (R. 59; 201). 

3. President Howell's promises of pay increases and solicitation of employee 
rejection of the Union 

During the two week period before the election, 
President Howell told Employee Skelton that "If 
the union was defeated, why, everybody would get a 
raise" (R. 30, 58; 226-228). Similarly, Howell 
promised Employee Hansen to see to it that he "got 
a raise in time" if Hanson voted "in favor of the 
plant" (R. 30, 57; 209-210, 212). To Employee 
Smith, Howell said, "He didn't want the National 
Labor Relations Board in there to tell him how to 
run his business" adding that if the Union should 
be defeated at the election respondent would raise his 
commissions as a body man from 40 to 50 percent 7 
(R. 30, 58; 197-199, 201-202). 

C. Respondent's discharge of Union Steward Leonard 
1. Leonard's long and varied experience 

At the time of his discharge on March 31, 1950, 
Leonard had 25 years experience as an all around 



7 Howell later kept his promise. Three or four days after the 
Union lost the election, Howell at a company banquet given all 
the employees, announced a general wage increase which included 
a raise in commissions. Bodymen were raised to 50 percent and 
mechanics to 45 percent (R. 31 ; 242-244) . 



8 

mechanic (R. 38; 102-107, 109). He was a certified 
and approved Chevrolet mechanic and had received 
the General Motors Diploma for nine successive years 
after completing courses of instruction in Chevrolet 
mechanics and repair (R. 38-39; 110-114). He re- 
ceived his eighth annual diploma while still in re- 
spondent's employ and his ninth about a month after 
his discharge (R. 39; 111-113). He had also operated 
his own automobile repair shop for three years be- 
tween 1929 to 1933 (R. 39; 104-106). Although Leon- 
ard was engaged in brake adjustment work at the 
time of his discharge, his experience both in and out 
of respondent's employ included front end work (R. 
39; 103, 107, 108, 109, 152-156) as well as the over- 
hauling and repair of motors, transmissions, and 
rear ends, grinding valves, and other types of mechan- 
ical work performed in a general garage (R. 39; 
103-104,107,108,109). 

Respondent employed Leonard twice. In 1944, he 
came in as a line mechanic. His broad duties as such 
required him, in addition to doing front end work, to 
overhaul motors and transmissions, do rear end work, 
and reline and adjust brakes (R. 39; 106-107). After 
Leonard had been with respondent for a little over 
a year, respondent's service manager opened his own 
repair shop and took Leonard with him to work as a 
general mechanic (ibid.). 

In January 1948, respondent employed Leonard 
again, this time as a brake repairman (R. 39; 109). 
Although he regularly relined and adjusted brakes, 
overhauled and repaired wheel, and master cylinders 
and made other repairs on the brake system (R. 39; 



109) he also had repeated occasion to do front end 
work as well as other types of work during busy 
periods (R. 39; 151-153). Thus, during two weeks in 
August 1949, when the regular front end man was on 
vacation, and also when he was away for some days 
at other times on account of sickness, Leonard per- 
formed the latter ? s front end work in addition to his 
own regular duties (R. 39-40; 109-110, 152-158). 

2. Leonard's outstanding union activity and respondent's threats of 
discharge for supporting the Union 

Leonard joined the Union on January 23, being 
the first man in the shop to do so (R. 20, 40; 114). 
He was elected senior chairman or shop steward on 
January 30, and respondent admittedly noted that he 
began wearing his " senior chairman" button to work 
the following day (R. 20-21, 40; 115, 120-121, 249- 
251). As leader of the Union's organizational drive, 
he openly solicited and obtained many new union 
supporters (R. 40; 121-124, 125-129, 220-223, 256, 
291, 293, 294, 297-298, 301-302). As we have seen 
(supra, p. 4), about a week after Leonard first 
wore his button to work, Body Shop Foreman Ogen 
warned Leonard "To get away from him with that 
button on" as "he did not want to get fired" and 
stated also that President Howell told him (Ogen) 
that he was "going to fire anybody that joined the 
Union." During the same week and while Kirkland 
was also wearing a Union membership button, Fore- 
man Ogen repeated to him and to Leonard that Presi- 
dent Howell had said that he intended to discharge all 
members of the Union (supra, p. 4) . 



10 

3. Respondent's discharge of Leonard, allegedly for economic reasons 

Leonard derived his earnings solely from commis- 
sions received for work done for specific customers 
(R. 40-41; 131, 134, 139). During the month prior 
to January 31, his bi-weekly net earnings after deduc- 
tions for withholding tax, social security, and the like 
amounted to about $150 (R. 41; 135-137). In the 
beginning of the following month, however, and coin- 
cidentally with the manifestation of Leonard's leader- 
ship in the Union, Service Manager Bordeau began 
assigning work normally assigned to Leonard to 
the men who worked on the lubrication rack, one of 
whom was Bordeau's son (R. 41; 139-148, 164-167, 
178-179). Reflecting this diversion of available work, 
Leonard's bi-weekly net earnings fell substantially (R. 
41; 135-136). 8 On March 21, and just after Leonard 
had finished working overtime, Bordeau discharged 
him. He told Leonard that there was not enough 
work for the brakeman and the front end man to each 
make a living and that respondent had decided to 
combine front end and brake jobs and keep in its 
employ only Herrick, the front end man (R. 41; 137- 
138). Respondent has advanced no other reason for 
the discharge (R. 42). Leonard protested that he 
had more seniority than Herrick and that he also 
could perform front end work. Bordeau replied, 
however, "that is the way it is to be and he could do 
nothing further about it" (ibid.) . 



8 Leonard's bi-weekly net earnings were $98.27 as of February 
15, $45.52 as of February 28 y $69.30 as of March 15, and $87.22 as of 
March 31. 



11 



In the two-month period after Leonard's discharge, 
and before the election (supra, p. 3), respondent ad- 
mittedly had "a busy season'' (R. 266). Herrick's 
earnings nearly doubled and he found it necessary to 
call in an outside worker about 4 times in order to 
help get his job done (R. 42; 266, 255-256, 264-265, 
182, 188-189, 248-249). Service Manager Bordeau 
testified that he did not recall Leonard to help Her- 
rick, instead of allowing Herrick to obtain strange 
help, because he did not know where to reach Leonard 
(R. 42-43; 266). However, Leonard had visited 
respondent's establishment several times during this 
period (R. 43; 149-150). Moreover, President Howell 
himself saw Leonard there and once personally ordered 
him off the premises (R. 43; 150). Bordeau also 
testified that Leonard could not do front end work and 
had indicated that he would not be interested in the 
combined brake and front end job because "some time 
in 1949" he had refused to do certain front end align- 
ment work (R. 43; 267-268). Leonard, who had 
frequently done front end work for respondent 
(supra, pp. 8-9), had refused to do the particular front 
end alignment work when Bordeau had requested it 
only because he was actually working on another job 
at the time and was unable to undertake the extra 
work in addition (R. 43; 302, 148-149). 

II. The Board's conclusions 

On the basis of the foregoing facts, and upon the 
whole record, the Board concluded that respondent, in 
violation of Section 8 (a) (1) of the Act, interfered 



12 



with, restrained and coerced its employees by threats 
of discharge of union supporters ; by threats of a plant 
shutdown if the Union won the Board-conducted 
election; by promises of pay increases if the Union 
were defeated; by interrogation as to employee Union 
membership and activity; and by announcing that it 
would not bargain with the Union and would never 
recognize or contract with it (R. 56-59). 

The Board also found that respondent discharged 
Leonard in violation of Section 8 (a) (3) of the Act 
because of his Union membership and activities (R. 
59-60). The Board rejected respondent's contentions 
that it discharged Leonard because of economic rea- 
sons and that it had selected him for dismissal because 
he was not qualified to do front end work and had 
indicated a lack of interest in it (R. 43). 

The Board further concluded that on or after 
February 1, 1950, respondent failed to bargain with 
the Union, in violation of Section 8 (a) (5) of the 
Act (R. 60-61, 37-38). The Board found that re- 
spondent in refusing to recognize and bargain with the 
Union, was not motivated by any good faith doubt of 
the Union's majority in an appropriate bargaining 
unit, but solely by a desire to gain time in which to 
destroy the Union's majority and also by a rejection 
of the collective bargaining principle (R. 61-62, 

33-38). 

III. The Board's order 

The Board's order (R. 64-70) requires respondent 
to cease and desist from the unfair labor practices 
found. As affirmative action, the order requires re- 



13 

spondent, upon request, to bargain collectively with 
the Union, offer reinstatement with back pay to Em- 
ployee Leonard, make available to the Board, upon 
request, its records necessary to analyze the amount 
of back pay due and the right of reinstatement under 
the terms of its order, and post the usual notices. 9 

ARGUMENT 



Substantial evidence supports the Board's finding that re- 
spondent interfered with, restrained and coerced its em- 
ployees in violation of Section 8 (a) (1) of the Act 

Respondent's reaction to its employees' exhibition of 
interest in the Union was an outright counter-offen- 
sive of elementally unlawful interference, restraint 
and coercion, conducted by its president, service man- 
ager, body shop foreman, and attorney {supra, pp. 
4-7). 



9 The Board dismissed the complaint insofar as it alleged that 
respondent also violated Section 8 (a) (4) of the Act in discharg- 
ing Leonard (R. 67). The Board found that Attorney Potruch's 
statements to respondent's employees that respondent would con- 
test the Board's jurisdiction, while not violative of Section 8 (a) 
(1) of the Act, were calculated to impress upon the employees 
the futility of voting for the Union in the election. The Board 
found in addition that by these remarks, as well as by its conduct 
in violation of Section 8 (a) (1) and (3), respondent created 
an atmosphere incompatible with the employees' freedom of choice 
in their selection of a bargaining representative and thus inter- 
fered with the election (K. 63). Further finding no actual good 
faith doubt of the Union's majority on respondent's part and 
therefore no existing question affecting representation, the Board 
concluded that the election should be regarded as a nullity. The 
Board therefore dismissed the petition in the representation case 
which had been consolidated with this proceeding (R. 63, 67). 

985239—52 3 



14 

Thus, through Foreman Ogen, respondent threat- 
ened that it would dismiss union supporters (supra, 
pp. 4-5) . Through Attorney Potruch, respondent elab- 
orately brought home to its employees the possibility 
that, as a tactic in its envisioned fight "to the last 
dollar/ ' against submitting to the collective bargain- 
ing requirements of the Act, respondent might find 
it "necessary to do something to be cited for an unfair 
act," "someone might have to be discharged * * * 
deliberately" as a means of making a case in order 
to bring the matter of the Board's jurisdiction 
squarely before the courts (supra, p. 6). 10 Through 
Service Manager Bordeau respondent threatened that 
it would shut down its operations rather than bargain 
with the Union (supra, p. 5), 11 and Attorney Potruch 
declared that, in any event, it would not recognize the 
Union or contract with it unless its employees could 
succeed in forcing it to do so through resort to a 
strike (supra, p. 6). 12 Balancing the threats of re- 
prisal with promises of benefit, President Howell 
offered to increase the employee commission rate in 

10 H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, 518; Texas Co. 
v. N. L. R. B., 135 F. 2d 562, 563 (C. A. 9) ; N. L. R. B. v. Poison 
Logging Co., 136 F. 2d 314 (C. A. 9) ; N. L. R. B. v. Long Lake 
Lumber Co., 138 F. 2d 363, 364 (C. A. 9) ; N. L. R. B. v. Security 
Warehouse <& Cold Storage Co., 136 F. 2d 829, 833 (C. A. 9) . 

11 N. L. R. B. v. Poison Logging Co., 136 F. 2d 314 (C. A. 9) ; 
N. L. R. B. v. Long Lake Lumber Co., 138 F. 2d 363, 364 (C. A. 
9) ; N. L. R. B. v. Lettie Lee, Inc., 140 F. 2d 243, 246, 247 (C. A. 9) . 

12 See N. L. R. B. v. J. G. Boswell Co., 136 F. 2d 585, 590 (C. A. 
9) ; N. L. R. B. v. Lettie Lee, Inc., 140 F. 2d 243, 245, 246, 247 
(C. A. 9). See also, N. L. R. B. v. Bradford Dyeing Assn., 310 
U. S. 318, 337. 



15 



return for defeat of the Union in the scheduled elec- 
tion {supra, p. 7), 13 and Service Manager Bordeau 
declared that " everyone would get a raise" {supra, 
p. 5). Finally, through Foreman Ogen, respondent 
engaged in extensive interrogation of its employees 
about their union sympathies and activities {supra, 
p. 5), action which is coercive in itself 14 and, in a 
context of blatant antiunionism, is doubly so. 15 

Respondent's contention before the Board, that it was 
not responsible for Foreman Ogen's antiunion activi- 
ties because Ogen was not really a supervisory em- 
ployee was properly rejected (R. 57, n. 5). The record 
leaves no question but that Ogen was foreman of the 
body shop and thus part of management. When Presi- 
dent Howell was asked at the hearing to describe the 
Company's operations he testified (R. 89) : " We have a 
new car sales room, a parts department, a service depart- 
ment, lubrication department, body shop * * V 
Describing the management of these departments, Presi- 
dent Howell testified (R. 90) : u We operate with a sales 
manager of new cars, a parts manager in charge of the 
parts department, a service manager in charge of the 

13 Medo Photo Supply Corp. v. N. L. R. B., 321 U. S. 678, 684; 
N. L. R. B. v. Fitzpatrich <& Weller, Inc., 138 F. 2d 697, 699 (C. A. 
2) ; N. L. R. B. v. Ford, 170 F. 2d 735 738 (C. A. 6) ; M. H. Ritz- 
woller Co., v. N. L. R. #., 114 F. 2d 432, 435 (C. A. 7). 

14 Joy Silk Mills, Inc. v. N. L. R. B., 185 F. 2d 732, 743 (C. A. 
D. C.) , certiorari denied, 341 U. S. 914. 

15 H. J. Heinz Co. v. N. L. R. B., 311 U. S. 514, 518 ; N. L. R. B. 
v. J. G. Boswell Co., 136 F. 2d 585, 590 (C. A. 9) ; N. L. R. B. v. 
Lettie Lee, Inc., 140 F. 2d 243, 245 (C. A. 9) ; N. L. R. B. v. Holt- 
ville Ice <& Cold Storage Co., 148 F. 2d 168, 169-170 (C. A. 9). 



16 

service department with a body shop foreman under his 
jurisdiction, and a used car manager." Howell then 
named Frank Ogen as the body shop foreman (R. 
90-91). 16 As the Board noted (R. 57, n. 5), Employee 
Smith, who did body and fender work, testified that 
Ogen was his foreman and that Ogen had told him 
"He wouldn't have any union man working under 
him" (R. 193-194). Employee Arnold, also a body 
and fender worker, likewise testified that Ogen was 
his foreman (R. 204, 206), as did Employees Kirk- 
land and Leonard (R. 131, 163). The Board pointed 
out (R. 57, n. 5) that although "it was clear at the 
hearing that the General Counsel was seeking to at- 
tribute to the respondent various [unlawful] acts of 
interference * * * by virtue of Ogen's super- 
visory status * * * Respondent did not contend 
that Ogen was not a supervisor or come forward with 
evidence to rebut the testimony indicating that Ogen 
was a supervisor." 

There is no basis therefore for regarding Ogen ? s 
supervisory status as being any different than that 
which ordinarily attaches to the familiar term "fore- 
man." Ogen did not testify (R. 22, n. 12), and cer- 
tainly respondent's bare unsupported statement, made 
in its briefs to the Board and trial examiner after the 
close of the hearing, that Ogen was not a supervisory 
employee, does not offset the contrary evidence re- 
ferred to above. We submit that the Board correctly 
concluded (R. 57, n. 5), as had the trial examiner 

16 Ogen's name is misprinted "Frank Hogan" at K. 90, bnt 
correctly printed "Frank Ogen" at E. 91. 



17 

(R. 19, 22, n. 12), that "In the light of the entire 
record * * *. * * * Ogen was a supervisor 
within the meaning of the Act and * * * his 
conduct was attributable to the Respondent." 17 In- 
ternational Assn. of Machinists v. N. L. R. B. y 311 
U. S. 72, 79, 81 ; A T . L. R. B. v. Security Warehouse & 
Cold Storage Co., 136 P. 2d 829, 833 (C. A. 9) ; Ohio 
Potver Co. v. N. L. R. B., 176 F. 2d 385 (C. A. 6), cer- 
tiorari denied, 338 U. S. 899. 

II 

Substantial evidence supports the Board's finding that re- 
spondent refused to bargain with the Union, in violation of 
Section 8 (a) (5) and (1) of the Act 

A. The Union represented a majority of the employees in an appropriate 

unit 

The Board found that at the time of the refusal to 
bargain on February 1, 1950, the Union had been 
designated as their bargaining representative by a 



17 Apart from Foreman Ogen's conduct, the concurrent anti- 
union activities of respondent's president, its service manager, and 
its attorney (supra, pp. 4r-7), fully support the Board's conclu- 
sion and order relating to unlawful interference and coercion (R. 
56-58, 65). Respondent's contention that Foreman Ogen's acts 
of interference were, in any event "isolated" is manifestly with- 
out basis. Indeed, in light of the similarity between Foreman 
Ogen's antiunion activities and those of the three unquestioned 
representatives of management, it is fair to say that, regardless 
of Ogen's actual supervisory status "respondent's employees had 
just cause to believe that [he was] acting for and on behalf of 
respondent and that respondent was responsible for [his] activi- 
ties." N. L. R. B. v. Germain Seed Co., 134 F. 2d 94, 99 (C. A. 
9), and cases there cited; N. L. R. B. v. Security Warehouse <& 
Cold Storage Co., 136 F. 2d 829, 833 (C. A. 9). Cf. N. L. R. B. 
v. Fred P. Weissman Co., 170 F. 2d 952, 954 (C. A. 6), certiorari 
denied, 336 U. S. 972. 



18 

majority of the employees in an appropriate bargain- 
ing unit (R. 18-20, 55, 60-62). While respondent 
does not question the correctness of the Board's unit 
determination (R. 5, 9), 18 it challenges, as unsup- 
ported, the finding with respect to the Union's 
majority. 

The Board found, on the basis of a list prepared by 
respondent that there were 28 employees in the unit 
(R. 19; 101-102, 234-235). Of these, 14 had signed 
Union designation cards on or before January 31 
(R. 20; 117-118, 119-120, 122-125, 127, 130, 162, 205, 
216-219, 222-225, 233-234) and one (Employee 
Leonard) testified that he had joined the Union on 
January 23 (R. 20; 115). Accordingly, the Board 
found that at the critical time in question the Union 
had been designated bargaining representative by a 
majority of 15 out of the 28 employees in the unit 
(R. 20). 

Respondent's claim that the Union's majority was 
not proved is based solely on its contention that the 
signature on Employee Malstrom's designation card 
was not properly identified when the card was re- 
ceived in evidence (R. 129) . 19 Upon the undisputed 
facts relating to the circumstances of Malstrom's 
signing of the card, we submit, this objection is 

18 The Board found that the appropriate bargaining unit con- 
sisted of all of respondent's employees, excluding supervisors, 
salesmen, office and clerical employees, professional employees, 
and guards (R. 18). 

19 The claim that Foreman Ogen was not a supervisory em- 
ployee and therefore should have been included in the unit is 
immaterial. Increasing the number of employees in the unit to 
29, by including Ogen, would not have affected the Union's 
majority of 15 employees. 



19 

patently frivolous. On the morning of January 31, 
at the same time Shop Steward Leonard gave Em- 
ployee Sciolora a card and asked him to sign and 
return it, he gave a card to Malstrom (R. 126, 128). 
A little while later the same morning both Sciolora 
and Malstrom handed the signed cards back to Leon- 
ard (R. 126, 128-129). Sciolora testified that he had 
signed his card (R. 298). In these circumstances, the 
fact that Malstrom was not called to testify at all, 
and that his signature on the card was never formally 
identified, affords no basis for attacking the Board's 
finding that he, as well as Sciolora, designated the 
Union as his bargaining representative. The very 
fact that he promptly returned the card to the shop 
steward with his name written on it warrants the 
inference that the signature was his own. And even 
apart from this, Malstrom 's action in returning the 
card bearing his ostensible signature clearly evidenced 
his intent to have the Union represent him. The 
Act "requires no specific form of authority to bargain 
collectively * * * Authority may be given by 
action as well as in words • * * * not form, but in- 
tent, is the essential thing * * * It is only nec- 
essary that it be manifested in some manner capable 
of proof, whether by behavior or language.'' Lebanon 
Steel Foundary Co. v. N. L. R. B., 130 F. 2d 404, 
407 (C.A.D. C.). 20 



20 It was not necessary that Malstrom should have signed the 
card. If he did not actually sign it, it is clear that he adopted 
the signature as he had full power to do. Wigmore, Evidence, 
3d Ed., Sec. 2134; Restatement of the Law of Agency, Sees. 17, 
20, 82, 84. Brezner Tanning Co., 50 N. L. R. B. 894, 904, enforced, 
141 F. 2d 62 (C.A.I). 



B. Respondent's unlawful refusal to bargain 

Since the Union had been duly designated as their 
bargaining representative by a majority of respond- 
ent's employees, it follows that respondent's con- 
ceded refusal to bargain with the Union (supra, pp. 
3-7), unless excused by other circumstances, was in 
violation of Section 8 (a) (5) of the Act as the 
Board found (R. 60-62). The only defenses suggested 
by respondent are that it doubted that its operations 
were subject to the Board's jurisdiction, and doubted 
that the Union actually represented a majority of its 
employees (R. 61-62). These, we submit, the Board 
properly rejected (ibid.). 

It goes without saying, we believe, that respond- 
ent's doubt as to the Board's jurisdiction is imma- 
terial to the question of respondent's responsibility 
for its conduct. Respondent's unquestioned right to 
litigate the jurisdictional issue did not include a 
license to violate the statute. N. L. R. B. v. Jones & 
Laughlin Steel Corp., 301 U. S. 1, 42-43; Moaj 
Department Stores Co. v. N. L. R. B., 326 U. S. 
376, 388-392. 

With respect to the contention that respondent 
refused to recognize the Union because it doubted 
the Union's majority, the record conclusively sup- 
ports the Board's finding to the contrary (R. 61-62). 21 

21 The Board recognizes, of course, that an employer may refuse 
recognition and insist upon an election when he actually has an 
honest doubt as to the union's majority status. W. T. Grant 
Company, 94 NLKB No. 145, pending in this Court on Board's 
petition for enforcement, No. 13133; Sport Specialty Shoemakers, 
Inc.,, 77 NLKB 1011, 1012-1013; Joy Silk Mills, Inc. v. 
N. L. R. B., 185 F. 2d 732, 741 (C. A. D. C), certiorari denied, 
341 U. S. 914. 



21 

As we have seen (supra, pp. 4-7), respondent did 
not merely refuse the Union's request for recognition 
and bargaining, but deliberately undertook a cam- 
paign of coercive unfair labor practices in order to 
eliminate any obligation to bargain by destroying the 
Union's support. Thus respondent questioned em- 
ployees concerning their union membership and ac- 
tivity, threatened to discharge Union supporters, prom- 
ised rewards to employees who would reject the Union, 
declared that it would never bargain or contract with 
the Union unless forced by a strike to do so (supra, 
pp. 4-7), and giving substance to its earlier threats 
finally discharged Shop Steward Leonard because of 
his Union activity, (supra, pp. 7-11; infra, pp. 22-25). 
In addition to all this respondent made clear that it 
had no qualms about risking a violation of the Act, 
when it declared that it would in fact do so deliber- 
ately, if necessary, in order to provide a case to test 
in the courts the issue of the Board's jurisdiction 
(supra,]). 6). 

In our view, it would be difficult to conceive a case 
that would afford more compelling evidentiary sup- 
port for a finding that the employer, in refusing to 
bargain, was not acting from a good faith doubt of 
the union's majority. 22 The Board could scarcely 

22 The Board noted also that Attorney Potruch in his remarks 
to the employees in the spring of 1950, indicated a realization of 
the Union's majority support, when he reproached them for af- 
filiating with the Union, but said that they "had gone too far" 
at that point "to do [their] own talking; that they had selected 
voluntarily somebody to represent them and that person would 
do all their talking for them at any time they wanted to" (R. 



22 

have concluded otherwise than that respondent's " re- 
fusal to recognize the Union on February 1, 1950, and 
thereafter, was motivated by a desire to gain time 
in which to destroy the Union's majority, and by a 
rejection of the collective-bargaining principle" 
(R. 62). Cf. N. L. R. B. v. Biles-Coleman Lumber 
Co., 98 F. 2d 18, 22 (C. A. 9) ; Joy Silk Mills, Inc. v. 
N. L. R. B., 185 F. 2d 732, 741 (C. A. D. C), certiorari 
denied, 341 U. S. 914; N. L. R. B. v. Star Beef Co., 
decided December 15, 1951 (C. A. 1), 29 LRRM 
2190, 2194; if. L. R. B. v. Everett Van Kleeck & Co., 
Inc., 189 F. 2d 516 (C. A. 2). 

Ill 

Substantial evidence supports the Board's finding that re- 
spondent discharged Employee Leonard because of his activ- 
ities in behalf of the Union, in violation of Section 8 (a) (3) 
and (1) of the Act 

As shown in the statement of facts {supra, pp. 
3-11), Leonard, the leading Union advocate among 
respondent's employees, joined the Union at the out- 
set of its organizing campaign and was elected shop 
steward on January 30. Tw T o months later he was 
discharged allegedly for economic reasons, which the 



62; 270-271, 277-278). The Board and trial examiner, crediting 
the contrary testimony of other witnesses (R. 33-37, 55; 305-310), 
did not credit Potruch's testimony that he stated at an informal 
meeting of Board and Union representatives, held in February 
and relating to another case, that he did not believe the Union 
had a majority (R. 37; 304-305). The question of the Union's 
proof of its majority never arose. At the February meeting re- 
ferred to, the parties did not even discuss the Howell case (R. 
35-36 ; 305-309) . Cf . N. L. R. B. v. State Center Warehouse Co., 
decided November 27, 1951 ( C. A. 9) , 29 LRRM 2209, 2210. 



23 

Board found to be a patently manufactured pretext. 
During that two month interval respondent engaged 
in an outright campaign of particularly coercive un- 
fair labor practices, including threats of discharge 
and promises of reward, all designed to destroy the 
Union's majority and eliminate respondent's statu- 
tory obligation to bargain with it. Not only were 
threats of discharge made to the employees generally, 
but when Foreman Ogen saw Leonard wearing his 
Union button in the shop he warned Leonard to "get 
away from him with that button on" because "he 
didn't want to get fired," and added that President 
Howell had said that he was going to fire anyone who 
joined the Union. In addition to this familar type 
of threat, respondent made the extraordinary declara- 
tion to its employees that it might find it necessary 
to discharge an employee in violation of the Act in 
order to provide a test case on the question of the 
Board's jurisdiction. 

When against this background of open antiunionism 
respondent discharged Leonard for a stated reason 
which "did not stand up under scrutiny" (N. L. R. B. 
v. J. G. Boswell Co., 136 F. 2d 585, 595 (C. A. 9)), 
the conclusion that respondent's threats were pro- 
phetic, and the discharge simply a facet of respond- 
ent's attack upon the Union, was little short of 
inevitable. 

As the Board found, soon after Leonard assumed 
leadership of the Union's campaign respondent be- 
gan to divert the brake adjustment work customarily 
done by Leonard to other employees who regularly 



24 

operated the lubrication rack, a different type of 
work. Then, citing Leonard's reduced earnings, re- 
spondent declared that since there was not enough 
work for both the brake man and the front end man 
to earn a living, it had decided to combine the two 
jobs into one and give it to Herrick, the front end 
man, who had less seniority than Leonard. When 
Leonard protested against this departure from sen- 
iority and declared that he could also do front end 
work, Service Manager Bordeau offered no explana- 
tion, but simply said "that is the way it is to be" 
(supra, j). 11). 

Respondent contended before the Board that it 
did not consider Leonard qualified to do front end 
work or interested in handling it, claiming that he 
had at times refused requests to do such work (supra, 
p. 11). But the contention is baseless. The record 
shows that Leonard was not only an all around able 
mechanic with 25 years of experience, but that he had 
repeatedly done front end work for respondent as 
well as for other employers. Moreover, on the 
occasions referred to by respondent, the only reason 
Leonard had turned down the front end work offered 
to him was that he was too busy with other w T ork to 
handle it. And at the time of his discharge, as we 
have seen, Leonard expressly declared his willing- 
ness and capacity to do front end work. 
- If more were needed to demonstrate that respond- 
ent's discharge of Leonard was not based upon 
economic necessity, it is revealed in the fact that 
soon after his discharge Herrick's earnings at the 
combined job nearly doubled (supra, p. 11). More- 



25 

over, when Herrick on three or four occasions needed 
extra help to handle the work, respondent did not 
recall Leonard but employed outside help. Respond- 
ent's claim that it did so because it did not know 
how to reach Leonard was reasonably rejected by 
the Board since, during the period in question, Leonard 
visited the shop several times, and on one such occasion 
was even ordered off the premises by President Howell. 
We submit that the evidence in support of the 
Board's finding that Leonard was discharged because 
of his activity in behalf of the Union, and in viola- 
tion of Section 8 (a) (3) of the Act, is more than 
sufficient. 

CONCLUSION 

It is respectfully submitted that the Board's find- 
ings are supported by substantial evidence, that its 
order is valid and proper, and that a decree should 
issue enforcing the order in full. 

George J. Bott, 

General Counsel, 
David P. Findling, 

Associate General Counsel, 
A. Norman Somers, 

Assistant General Counsel, 
Marcel Mallet-Prevost, 
William J. Avrutis, 

Attorneys, 
National Labor Relations Board. 
January 1952. 



APPENDIX 

The relevant provisions of the National Labor 
Relations Act, as amended (61 Stat. 136, 29 U. S. C. 
Supp. IV, Sees. 151, et seq.), are as follows: 

DEFINITIONS 

Sec. 2. When used in this Act — 
***** 

(3) The term " employee" shall include any 
employee * * * but shall not include 
* * * or any individual having the status 
of an independent contractor, * * * 
***** 

(11) The term "supervisor" means any in- 
dividual having authority, in the interest of 
the employer, to hire, transfer, suspend, lay 
off, recall, promote, discharge, assign, reward, 
or discipline other employees, or responsibly 
to direct them, or to adjust their grievances, 
or effectively to recommend such action, if in 
connection with the foregoing the exercise of 
such authority is not of a merely routine or 
clerical nature, but requires the use of inde- 
pendent judgment. 



RIGHTS OF EMPLOYEES 

Sec. 7. Employees shall have the right to 
self -organization, to form, join, or assist labor 
organizations, to bargain collectively through 
representatives of their own choosing, and to 
engage in other concerted activities for the 
purpose of collective bargaining or other mu- 
tual aid or protection, and shall also have the 

(26) 



27 

right to refrain from any or all of such activi- 
ties except to the extent that such right may 
be affected by an agreement requiring member- 
ship in a labor organization as a condition of 
employment as authorized in section 8 (a) (3). 

UNFAIR LABOR PRACTICES 

Sec. 8. (a) It shall be an unfair labor prac- 
tice for an employer — 

(1) To interfere with, restrain, or coerce 
employees in the exercise of the rights guaran- 
teed in Section 7 ; 

***** 

(3) By discrimination in regard to hire or 

tenure of employment or any term or condition 

of employment to encourage or discourage 

membership in any labor organization : * * * 

***** 

(5) To refuse to bargain collectively with 
the representatives of his employees, subject 
to the provisions of Section 9 (a). 



REPRESENTATIVES AND ELECTIONS 

Sec 9. (a) Representatives designated or 
selected for the purposes of collective bargain- 
ing by the majority of the employees in a unit 
appropriate for such purposes, shall be the 
exclusive representatives of all the employees 
in such unit for the purposes of collective bar- 
gaining in respect to rates of pay, wages, hours 
of employment, or other conditions of em- 
ployment: * * * 



PREVENTION OF UNFAIR LABOR PRACTICES 

Sec. 10. (a) The Board is empowered, as 
hereinafter provided, to prevent any person 



,28 

from engaging in any unfair labor practice 
(listed in Section 8) affecting commerce. This 
power shall not be affected by any other means 
of adjustment or prevention that has been or 
may be established by agreement, law, or 
otherwise. * * * 

(c) * * * If upon the preponderance of 
the testimony taken the Board shall be of the 
opinion that any person named in the complaint 
has engaged in or is engaging in any such 
unfair labor practice, then the Board shall 
state its findings of fact and shall issue and 
cause to be served on such person an order 
requiring such person to cease and desist from 
such unfair labor practice, and to take such 
affirmative action including reinstatement of 
employees with or without back pay, as will 
effectuate the policies of this Act * * * 

(e) The Board shall have power to petition 
any circuit court of appeals of the United 
States (including the United States Court of 
Appeals for the District of Columbia), or if 
all the circuit courts of appeals to which appli- 
cation may be made are in vacation, any 
district court of the United States (including 
the District Court of the United States for the 
District of Columbia), within any circuit or 
district, respectively, wherein the unfair labor 
practice in question occurred or wherein such 
person resides or transacts business, for the 
enforcement of such order and for appropriate 
temporary relief or restraining order, and shall 
certify and file in the court a transcript of the 
entire record in the proceedings, including the 
pleadings and testimony upon which such order 
was entered and the findings and order of the 
Board. Upon such filing, the court shall cause 
notice thereof to be served upon such person, 
and thereupon shall have jurisdiction of the 
proceeding and of the question determined 
therein, and shall have power to grant such 



29 

temporary relief or restraining order as it 
deems just and proper, and to make and enter 
upon the pleadings, testimony, and proceedings 
set forth in such transcript a decree enforcing, 
modifying, and enforcing as so modified, or 
setting aside in whole or in part the order of 
the Board. No objection that has not been 
urged before the Board, its member, agent, or 
agency, shall be considered by the court, unless 
the failure or neglect to urge such objection 
shall be excused because of extraordinary cir- 
cumstances. The findings of the Board with 
respect to questions of fact if supported by 
substantial evidence on the record considered 
as a whole shall be conclusive. * * * 



0. S. GOVERNMENT PRINTING OFFICE: 1952 



No. 13140. 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



National Labor Relations Board, 

Petitioner, 

vs, 

Howell Chevrolet Company, 

Respondent. 



BRIEF FOR RESPONDENT. 

On Petition for Enforcement of an Order of the National 
Labor Relations Board. 



Findlay A. Carter, 
Frederick A. Potruch, 
James M. Nicoson, 

610 South Broadway, 

Los Angeles 14, California, 

Attorneys foriReslpo]^^^ L> 

MAR - 3 1952 

PAtJl. P. O'RRIFM 



Parker & Company, Law Printers, Los Angeles. Phone MA. 6-9171. CLERK 



TOPICAL INDEX 

PAGE 

Statement of the case 2 

Early history of Union's organizing efforts 2 

The purported statements of Frank Ogan 4 

The speeches of Frederick A. Potruch 5 

The discharge of Claude Leonard 6 

Summary of argument 8 

Questions presented 9 

Argument 10 

Point I. Respondent is not subject to the jurisdiction of the 
National Labor Relations Board under the National Labor 
Relations Act 10 

Point II. The Board's findings that respondent interfered 
with, restrained and coerced its employees in violation of 
Section 8(a)(1) of the Act are not supported by substan- 
tial evidence on the record considered as a whole 11 

1. The talks of Frederick A. Potruch 11 

2. The conduct of Frank Ogan is not imputable to re- 
spondent 17 

3. The purported statements of Jackson Howell 20 

4. The purported statement of Rowland Bordeau 22 

Point III. The Board's findings that respondent discrimina- 
torily discharged Claude Leonard in violation of Section 
8(a)(3) of the Act are not supported by substantial evi- 
dence on the record considered as a whole 23 



11. 

PAGE 

Point IV. The Board's findings that respondent has refused 
to bargain in violation of Section 8(a) (5) are not supported 
by substantial evidence on the record considered as a whole 28 

1. The letter of January 31, 1950, was not a demand 
which respondent was required to comply with 28 

2. The record fails to show the majority status of the 
Union at any time 29 

Point V. The Board acted improperly and unjustly in setting 
aside the election in which respondent's employees demon- 
strated that they did not desire to be represented by the 
Union for the purposes of collective bargaining 31 

Point VI. The respondent was not afforded a fair hearing 
before an impartial trial examiner and was denied due 
process of law 34 

Conclusion 38 

Appendix : 

Relevant provisions of the National Labor Relations Act, as 
amended (61 Stat. 136, 29 U. S. C, Supp. IV, Sees. 151 
et seq.) App. p. 1 



111. 
TABLE OF AUTHORITIES CITED 

Cases page 

American Tube Bending Corp. v. N. L. R. B., 134 F. 2d 993; 

cert. den. 320 U. S. 768 15 

Arnall Mills v. Smallwood, 68 F. 2d 59 37 

Atlantic Stages, 78 NLRB 553 12 

Babcock & Wilcox, 77 NLRB 577 12 

Big Lake Oil Co. v. N. L. R. B, 145 F. 2d 967 15 

Brezner Tanning Co., Inc., 50 NLRB 894 29 

Burns Brick Co., 80 NLRB 389 12 

Calumet & Hecla Consolidated Copper Co., 85 NLRB 28 19 

Cedartown Yarns Mills, Inc., 84 NLRB 1 12 

Chance Vought Div., 85 NLRB 183 12 

Chesapeake & Ohio R. Co. v. Marting, 283 U. S. 214 37 

Consolidated Edison Co. v. N. L. R. B., 305 U. S. 197 30 

Cookeville Shirt Co., 79 NLRB 667 12 

Crowley Milk Co., 88 NLRB 187 12 

E. B. Law & Son, 91 NLRB 136 18 

Enid Cooperative Creamery Assn., 169 F. 2d 986 13 

Georgia R. & Banking Co. v. Wall, 80 Ga. 202 37 

Globe Wireless Ltd., 88 NLRB 211 12 

H & H Mfg. Co., 87 NLRB 1333 12 

Hinde Dauch Paper Co., 78 NLRB 488 12 

Jacksonville Paper Co. v. N. L. R. B, 139 F. 2d 148 20 

Larsen-Hogue Electric Co., 97 NLRB No. 215 34 

MacKay Radio Corp. v. N. L. R. B., 304 U. S. 33 15 

Mylan-Sparta, 78 NLRB 1144 19 

National Labor Relations Board v. Brezner Tanning Co., 141 

F. 2d 62 29 

National Labor Relations Board v. Budd Mfg. Co., 169 F. 2d 

571 18 



IV. 



PAGE 



National Labor Relations Board v. Caroline Mills, 167c F. 2d 
212 34 

National Labor Relations Board v. Cen-Tennial Cotton Gin Co., 
29 LRRM 2289 24 

National Labor Relations Board v. Clara- Val Packing Co., 28 
LRRM 2579 27 

National Labor Relations Board v. Conover Motors, 29 LRRM 
2045 10 

National Labor Relations Board v. Davis Motors, Inc., 29 LR 
RM 2046 10 

National Labor Relations Board v. Electric City Dyeing Co., 
178 F. 2d 980 13 

National Labor Relations Board v. Fairmont Creamery Co., 
144 F. 2d 128 20 

National Labor Relations Board v. Ford Motor Co., 114 F. 2d 

905 15 

National Labor Relations Board v. Fulton Bag & Cotton Mills, 

175 F. 2d 675 27 

National Labor Relations Board v. Goodyear Footwear Corp., 

186 F. 2d 913 13 

National Labor Relations Board v. Hinde & Dauche Co., 171 

F. 2d 240 20 

National Labor Relations Board v. John Deere Plow Co., 27 

LRRM 2348 32 

National Labor Relations Board v. Jones & Laughlin Steel Co., 

301 U. S. 1 24, 30 

National Labor Relations Board v. McGough Bakeries Corp., 

153 F. 2d 420 19 

National Labor Relations Board v. Montgomery Ward Co., 29 

LRRM 2041 20 

National Labor Relations Board v. O'Keefe & Merrit Mfg. Co., 

F. 2d (C.A. 9) 13 



V. 

PAGE 

National Labor Relations Board v. Pittsburgh S. S. Co., 340 
U. S. 489 16, 24, 27 

National Labor Relations Board v. Ray Smith Transport Co., 
29 LRRM 2202 27, 35 

National Labor Relations Board v. Russell, 91 F. 2d 358 37 

National Labor Relations Board v. Sidran Sportswear Co., 181 
F. 2d 671 13 

National Labor Relations Board v. Tennessee Coach Co., 28 
LRRM 2334 20 

National Labor Relations Board v. Townsend, 185 F. 2d 378.... 10 

National Labor Relations Board v. Universal Camera Co., 190 
F. 2d 429 16, 22, 27 

National Labor Relations Board v. West Ohio Gas Co., 172 
F. 2d 685 20 

Pennsylvania R. Co. v. Chamberlain, 288 U. S. 333 37 

S. W. Evans & Sons, 81 NLRB 161 12 

Sax v. N. L. R. B., 171 F. 2d 769 13, 20 

Sioux City Brewing Co., 85 NLRB 194 18 

Solomon Co., 84 NLRB 226 12 

Tampa Times Co. v. N. L. R. B, 29 LRRM 2288 24 

Tennessee Coach Co., 84 NLRB 703 12, 27 

Texas Co., 80 NLRB 862 12 

Thomas v. Collins, 323 U. S. 516 15 

Universal Camera Corp. v. N. L. R. B., 340 U. S. 474....16, 22, 27 

Warren Petroleum Corporation, 97 NLRB 226 19 

Westinghouse Electric Corporation, 77 NLRB 1058 17 

Wrought Iron Range Co., 77 NLRB 487 12 

Miscellaneous 
Senate Report No. 105 on S. 1126 18 



VI. 

Statutes page 

National Labor Relations Act, Sec. 8(a)(1) 2, 9, 11, 22, 31 

National Labor Relations Act, Sec. 8(a)(3) 2, 9, 27, 31 

National Labor Relations Act, Sec. 8(a)(5) 2, 9, 31 

National Labor Relations Act, Sec. 8(c) 11, 12 

National Labor Relations Act, Sec. 9(b) 29 

National Labor Relations Act, Sec. 10 1 

National Labor Relations Act, Sec. 10(e) 1 

Statutes at Large, Vol. 61, p. 136 1, 2, 11, 15, 26 

United States Code, Title 29, Supp. IV, Sec. 158(c) 11 

United States Code, Title 29, Supp. IV, Sec. 159(d) 2, 15 

United States Code, Title 29, Supp. IV, Sec. 160 1 

United States Code, Title 29, Supp. IV, Sec. 160(c) 26 

United States Code, Title 29, Supp. IV, Sec. 160(e) 1 



No. 13140. 
IN THE 



United States Court of Appeals 



FOR THE NINTH CIRCUIT 



National Labor Relations Board, 

vs. 
Howell Chevrolet Company, 



Petitioner, 



Respondent. 



BRIEF FOR RESPONDENT. 



This case is before the court upon a petition for the 
enforcement of an order of the National Labor Relations 
Board. The order is dated July 23, 1951, and the Na- 
tional Labor Relations Board invokes the jurisdiction of 
this court under the provisions of Section 10(e) of the 
National Labor Relations Act. 1 The Board's order is pur- 
portedly issued under the provisions of Section 10 of that 
Act. 2 Respondent does not contest the jurisdiction of the 
court to review and decide the matters presented by the 
petition and answer of the respondent filed herein. 3 The 
Board's decision and order, upon which these proceedings 
are predicated, is reported in 95 NLRB No. 62. 



*61 Stat. 136, 29 U.S.C. Supp. IV, 160 (e). 

2 61 Stat. 136, 29 U.S.C. Supp. IV 160. 

3 The pertinent portion of the National Labor Relations Act, as 
amended, are set forth in an appendix, infra. 



— 2— 

Statement of the Case. 

Upon charges filed by the International Association of 
Machinists, a labor organization, the Board, after the usual 
proceedings, issued a decision and order in which it found 
that respondent had engaged in interference, restraint, 
and coercion of its employees, in violation of Section 8 (a) 
(1) of the Act; had discharged one Claude Leonard, in 
violation of Section 8(a)(3) of the Act; had refused to 
bargain collectively with the charging union as an exclu- 
sive representative of respondent's employees, in violation 
of Section 8(a)(5) of the Act and had, by its unfair labor 
practices, necessitated the setting aside of an election, held 
by the Board, in which the employees of respondent had 
renounced the union as their exclusive bargaining repre- 
sentative. 4 [R. 12. ] 5 

Early History of Union's Organizing Efforts. 

Sometime in January, 1950, the International Associa- 
tion of Machinists initiated its attempts to secure member- 
ship among the employees of the respondent. As a part 
of such attempts it conducted a meeting which was attended 
by approximately eight of respondent's 29 employees [R. 
115-116, 101-102]. This meeting was held on January 
30, 1950, at the Local Hall of the charging Union [R. 
115]. While the record is not clear, one Claude Leonard, 



4 For the convenience of the court we shall follow the same 
method of record citations as adopted by the Board in its brief. 

5 Although the election and the procedures thereunder are the 
subject of a different case, the Board has failed to certify to the 
court the record in that representation proceeding. (See 61 Stat. 
136, 29 U.S.C. Supp. IV, 159(d).) No reason is given by the 
Board in its Petition for Enforcement, its Certification of the 
Record before the Board nor in its brief why it has failed to follow 
the statute in this respect. 



— 3— 

at or about that time became "shop steward or senior 
chairman" by a vote of the employees [R. 115]. Just 
which of the employees or how many participated in such 
selection is not revealed by the record. 

By January 30, 1950, eight of the 29 employees had 
selected the union as their bargaining agent [R. 117, 119, 
162, 216, 218, 219, 222, 114]. Sometime during January 
31, 1950, six more employees signed cards designating 
the union 6 [R. 122, 124, 127, 205, 225, 233]. 

Under date of January 31 1950, the Union forwarded 
to respondent a letter, in which it claimed to be the major- 
ity representative of respondent's employees, but there is 
no indication in the record whether this letter was written 
before or after the cards were signed on January 31, 1950 
[R. 214-215]. Respondent received this letter on Febru- 
ary 1, 1950, but did not answer it because, respondent, in 
good faith, doubted the union's majority claim [R. 216, 
304-305]. On the same date the union filed with the 21st 
Regional Office of the Board, at Los Angeles, its petition 
requesting that it be certified as the bargaining represen- 
tative of respondent's employees. As a result of this peti- 
tion, an election was held by the Board, the employees vot- 
ing 13 against designating the union as the bargaining 
agent, 11 were cast in favor of the union and 2 ballots 
were challenged (89 NLRB No. 142) [R. 12]. The re- 
sults of this election were set aside in the decision and 
order here under review [R. 63], such action is here being 
contested by respondent. 



e There was introduced into evidence, over the objection of re- 
spondent, a card purporting to be a designation of L. A. Malstrom, 
an employee, but there was no evidence introduced to show that in 
fact Malstrom had signed it. This card bore the date of Januarv 
31, 1950. [R. 130.] 



On the morning of January 31, 1950, employees Lee 
Fitzhugh, George Kirkland, William Barnum, Phillip 
Caballero, Kenneth Herrick and Claude Leonard all ap- 
peared at work wearing union buttons [R. 121, 251]. 

The Purported Statements of Frank Ogan. 

Frank Ogan, a body shop employee of respondent, had a 
conversation with another body shop employee named Ar- 
nold, a few days after the employees first appeared wear- 
ing the union buttons Arnold asked Ogan what he thought 
of the "guys" going union and Ogan replied that they had 
better watch out because Howell (the company president) 
was going to fire all of them that "are wearing buttons." 
Ogan did not say where he had obtained this bit of infor- 
mation [R. 204-206]. Arnold admittedly was merely 
soliciting Ogan's private opinion [R. 208], and understood 
Ogan's statement to be no more than a discussion of the 
question between fellow employees. 

Leonard, a mechanic and an employee who did not work 
with Ogan ; visited the latter several days later wearing 
his union button and Ogan jokingly told him "to get 
away" with that button on because he didn't want to be 
"fired." Leonard was simply seeking, from a fellow em- 
ployee, the source of the conversation had between Ogan 
and Arnold [R. 131]. Ogan purportedly told Leonard 
that Howell had told him that "he was going to fire any- 
body that joined the union" [R. 131, 236]. Ogan repeated 
these remarks to Leonard and George Kirkland later [R. 
163-164]. During a conversation with another fellow em- 
ployee of the body shop Ogan expressed his personal opin- 
ion that he would not have a union man working for him, 
and that he had never worked in a union shop [R. 194- 
196]. 



— 5— 

The Speeches of Frederick A. Potruch. 

In order that the employees might understand the legal 
implications with which respondent was confronted by the 
petition for certification which had been filed by the union, 
respondent had its attorney Frederick A. Potruch make 
some remarks with respect to such legal considerations. 

Potruch opened his remarks by stating that it was his 
opinion that the National Labor Relations Act did not 
apply to the business of respondent because of the nature 
of respondent's business and the localness of the enterprise, 
hence, it was his opinion that the Board did not have 
jurisdiction to hear and determine the representation peti- 
tion which had been filed by the union [R. 272-273]. At 
this time no disposition of that proceeding had been made 
by the Board, nor was there any indication that the Board 
would direct that an election be held among respondent's 
employees (89 NLRB No. 142). His remarks were merely 
a recitation of the position the respondent had taken with 
respect to the Board's jurisdiction, both formally and in- 
formally on the representation petition, and since this was 
his opinion with respect to the Board's jurisdiction the 
representation petition would have to be dismissed [R. 
272-273]. 

Mr. Potruch then clearly outlined the necessary steps 
in a representation proceeding and set forth the statutory 
scheme by which a Board determination in a representa- 
tion matter could be tested judicially [R. 273-275]. 

Potruch outlined to the employees various types of 
strikes and the obligations and rights of an employer dur- 
ing such upheavals [R. 275-276]. 

Potruch further made it clear, that during the pendency 
of the proceedings before the Board, respondent could not 



make any changes in the wages or working conditions for 
fear of engaging in violations of the National Labor 
Relations Act, and assured the men that no one was to be 
discharged or in any way discriminated against because of 
any union activities [R. 276-277]. The employees were 
likewise assured that respondent had no animosity against 
the union; that they had a right to join or not to join 
any union of their choice and that the respondent would 
do nothing to discourage such free choices as they may 
make [R. 278]. 

Later, after the Board had directed an election to be 
held, Potruch met with the employees, in a further series 
of meetings which in substance were merely explanations 
of methods of marking ballots and a description of the 
way the election would be conducted by agents of the 
Board [R. 278-281]. The remarks were held by the 
Board to be lawful [R. 59]. 

The Discharge of Claude Leonard. 

Claude Leonard was employed by respondent, in the 
mechanical repair department as a "brake man" — the 
duties of this position consisting of making repairs to 
the braking mechanism of the automobiles of customers 
of respondents [R. 151-152]. Also, employed in the same 
department was Kenneth Her rick 7 whose job was known 
as a "front end and frame straightening" man and whose 
duties entailed the alignment of the front wheels and the 
installation of components together with straightening and 
repairing bent frames of automobiles, to correct such de- 



7 Both Leonard and Herrick were union adherents and both wore 
their union buttons while on duty. These buttons were in plain 
view and were observed by respondent's supervisors. [R. 287.] 



— 7— 

ficiencies [R. 285]. Leonard's duties were performed in a 
"stall" where certain machinery incident to his work was 
maintained. Herrick performed his duties at a different 
location, in the shop, where he also maintained certain 
mechanical equipment used in his work [R. 286]. Both 
men were compensated from commissions on work per- 
formed. 

Beginning with the first of the year 1950, and up to the 
time of Leonard's dismissal, the work for which he was 
employed steadily decreased, as did the work of the "front 
end" man and other mechanics [R. 253, 136]. Because 
of this economic condition, respondent decided to combine 
these two jobs in order to afford one of these employees 
substantially full time compensation. 

Admittedly Leonard knew nothing about the work of 
the frame straightening machine* a complicated operation 
[R. 160], and in the opinion of respondent's officers, 
Herrick was as good a "brake man" as Leonard, if not 
better. While Leonard had done some "front end" work 
for respondent, he had expressed his dislike for that kind 
of work and on at least one occasion had refused to per- 
form "front end" work which the Service Manager had 
attempted to assign to him [R. 253-254]. Respondent, 
faced with a choice between two union men, elected to re- 



8 The frame straightening machine is composed of a series of 
headings, beams and tracks. Pressure is applied to the part of 
the frame that has been bent and has to be straightened out. This 
pressure is applied by a series of hydraulic jacks. The job re- 
quires the use of tracking gauges set under the car to align the 
car to tell whether it is in true line or not. Check of alignment is 
also made by using a "criss-cross" tape. A tracking gauge has 
a steel tape inside which measures the "sag" on the frame to deter- 
mine the use of pressure by hydraulics, necessary to correct align- 
ments. [For a more detailed description of this operation see 
original transcript 376-378.] 



tain Herrick, because of his superior experience and quali- 
fications and to dismiss Leonard. Leonard was discharged 
on March 21. 1950, and no person was employed to take 
his place. 

The mechanical equipment, used by Leonard, was moved 
to the area where Herrick performed his work, and the 
space that was occupied by Leonard and his equipment 
was converted into the use of a "line mechanic." 9 

Summary of Argument. 

It is the position of respondent, to be developed here- 
inafter, that the petition of the National Labor Relations 
Board for the enforcement of its purported order, issued 
against respondent on July 23, 1951, should be denied for 
the following reasons: (a) the findings, conclusions and 
order of the Board are not supported by substantial evi- 
dence on the record considered as a whole; (b) that be- 
cause of the bias of the Trial Examiner, respondent was 
not afforded a fair trial and was denied due process of 
law; (c) that the Board acted improperly and committed 
reversible error in ruling that an election held by the 
Board among respondent's employees on June 1, 1950, 
should be set aside and (d) that respondent is not engaged 
in a business covered by the National Labor Relations Act, 
and hence beyond the jurisdiction of the National Labor 
Relations Board. 



9 A line mechanic is one who works principally on motor repairs, 
transmissions and other mechanisms which motivate the vehicle. 



— 9— 

Questions Presented. 

The basic questions here presented by respondent are: 

1. Whether respondent is engaged in a business affect- 
ing commerce within the meaning of the National 
Labor Relations Act and whether the National Labor 
Relations Board has jurisdiction over respondent. 

2. Whether respondent was afforded a fair hearing 
before an impartial Trial Examiner and whether re- 
spondent was afforded due process of law. 

3. Whether the Board findings of fact and conclusions 
of law that respondent has interfered with, — re- 
strained and coerced its employees in violation of 
Section 8(a)(1) of the National Labor Relations 
Act, as amended, are supported by substantial evi- 
dence on the record considered as a whole. 

4. Whether the Board's findings of fact and conclu- 
sions of law that respondent discriminatorily dis- 
charged Claude Leonard in violation of Section 
8(a)(3) of the National Labor Relations Act, as 
amended, are supported by substantial evidence on 
the record considered as a whole. 

5. Whether the Board's findings of fact and conclu- 
sions of law that respondent refused to bargain col- 
lectively in violation of Section 8(2) (5) of the Na- 
tional Labor Relations Acts, as amended, are sup- 
ported by substantial evidence on the record consid- 
ered as a whole. 

6. Whether the Board acted properly and justly in 
setting aside an election, which demonstrated that 
respondent's employees did not desire to be repre- 
sented by the charging union, for the purposes of 
collective bargaining. 



—10— 

ARGUMENT. 

POINT I. 

Respondent Is Not Subject to the Jurisdiction of the 
National Labor Relations Board Under the Na- 
tional Labor Relations Act. 

During 1949 respondent purchased new cars, parts and 
accessories in the amount of $1,089,942.98, from the 
Chevrolet Division of General Motors Corporation at Van 
Nuys, California. All of the cars purchased were as- 
sembled and manufactured in California and no sales were 
made outside of that state. No purchase of any kind were 
made from any sources outside of California. Respondent 
operates under a non-exclusive agreement with General 
Motors Corporation to sell Chevrolet cars and trucks. 
At least 57% of the components of these purchases orig- 
inated within the state of California. Contrary to the 
findings of the Board, General Motors exercises no man- 
agerial control over the operations of respondent's busi- 
ness. 

The Board relies chiefly upon this court's decision in 
NLRB v. Townsend, 185 F. 2d 378, to support its find- 
ings that respondent is covered by the Act but that case, 
as the court well knows, was decided upon a different 
state of facts. In the Townsend case, all of the auto- 
mobiles involved were actually manufactured and assembled 
outside of the state of California. Those vehicles came 
into this state in a completed form, whereas in the instant 
matter the assembling and manufacture is a California 
operation and the products are all sold within this state. 
(Cf., NLRB v. Ken Rose Motors, Inc., Board's brief page 
2; NLRB v. Conover Motors, 29 LRRM 2045 (Cal.); 
NLRB v. Davis Motors, Inc., 29 LRRM 2046.) 



—li- 
lt is clear from the evidence in the record that the 
business of respondent is local and is not covered by the 
provisions of the National Labor Relations Act, as 
amended. 

POINT II. 

The Board's Findings That Respondent Interfered 
With, Restrained and Coerced Its Employees in 
Violation of Section 8(a)(1) of the Act Are Not 
Supported by Substantial Evidence on the Record 
Considered as a Whole. 

The evidence upon which the Board relies to sustain its 
findings that respondent has interfered with, restrained and 
coerced its employees in violation of Section 8(a) (1) stems 
principally from talks made to the employees by respon- 
dent's attorney, and from purported statements of Jack- 
son Howell (respondent's president), Rowland Bordeau 
(respondent's service manager), and Frank Ogan, an em- 
ployee who worked in respondent's body shop. 

1. The Talks of Frederick A. Potruch. 

It is respectfully submitted that none of the remarks of 
Mr. Potruch made to the employees can honestly and fairly 
be said to constitute unfair labor practices. Expressions 
of opinion, legal or otherwise, arguments and views are 
now completely protected by Section 8(c) of the Act, 
where, as here, there is such a marked absence of threats 
of reprisals or promises of benefit 10 and such views, argu- 
ment or opinions "shall not constitute or be evidence of an 
unfair labor practice under any of the provisions of this 
Act . . ." 



10 61 Stat. 136, 29 U.S.C., Supp. IV, Sec. 158(c). 



—12— 

Employers and their agents are now free to express their 
views. They may even give arguments for or against 
labor organizations, or the advisability of their employees 
joining a labor organization. Employers may express in 
no uncertain terms their opinion, arguments and views 
that the employees would be better off without a union 
than with one, or that the union would be unable to fulfill 
its promises, even though the employees may have selected 
a bargaining agent. Even the fact that the employer may 
have a deep seated animosity against the union does not in 
and of itself justify the finding of an act of violation. 11 



n The following situations have been held by the Board to be pro- 
tected by Section 8(c) as freedom of speech expressions: Argu- 
ments against a check-off and union shop, Hinde Dauch Paper Co., 
78 NLRB 488; notice to employees that employer did not intend 
to bargain with certified union because it felt NLRB decision was 
wrong, 5\ W. Evans & Sons, 81 NLRB 161 ; permitting employer's 
truck to participate in a parade celebrating the defeat of a union in 
an election, Cedartown Yarns Mills Inc., 84 NLRB 1 ; letter to 
employees to enlighten them and mark comparisons with other 
unionized plans, Solomon Co., 84 NLRB 226; calling union leaders 
"communists," Globe Wireless Ltd., 88 NLRB 211; notice to em- 
ployees that their interest would be best served by a vote against 
the union, Wrought Iron Range Co., 77 NLRB 487; profane char- 
acterization of union leaders, vilifying and disparaging the union, 
Atlantic Stages, 78 NLRB 553 ; that employer was going to do 
everything he could to fight the union coming into the plant, Burns 
Brick Co., 80 NLRB 389; statement that G I bill provided that 
employees did not have to join union for a year, Texas Co., 80 
NLRB 862; request to vote against the union and to persuade 
others from voting for the union, Tennessee Coach Co., 84 NLRB 
703 ; speech to employees expressing antipathy toward the union, 
Babcock & Wilcox, 77 NLRB 577; speech to employees that the 
union could not obtain advantages for the employees and that only 
the employer could grant benefits, Dixie Shirt Co.; appeals to "the 
intelligence" of the employees to vote against the union, Cookeville 
Shirt Co., 79 NLRB 667; stating a preference of operating without 
a union, Chance V ought Div., 85 NLRB 183 ; expressions of desire 
to continue to deal with the employees directly, H & H Mfg. Co., 
87 NLRB 1333; employer's attorney told employees they have a 
good place to work but you don't appreciate it and the company 
can replace you and that the company was not going to be forced 
to do something it didn't want to do, Crowley Milk Co., 88 
NLRB 187. 



—13— 

(NLRB v. O'Keefe & Merrit Mfg. Co., F. 2d 

(C.A. 9); Enid Cooperative Creamery Assn., 169 F. 2d 
986 (C.A. 10) ; NLRB v. Electric City Dyeing Co., 178 F. 
2d 980; Sax v. NLRB, 171 F. 2d 769 (C.A. 7); NLRB 
v. Sidran Sportswear Co., 181 F. 2d 671 (C.A. 5) ; NLRB 
v. Goodyear Footwear Corp., 186 F. 2d 913 (C. A. 6).) 
An impartial and fair examination of the statements 
of Potruch glaringly portray the lack of any threat of 
reprisals or promises of benefits. Rather they constitute 
an honest and clear exposition of the legal principles in- 
volved and the rights of the respondent in the light of 
those clear legal precepts. 

In these statements the employees are assured of their 
rights to join or not to join a union and were equally and 
forcibly assured that respondent would do nothing to in- 
terfere with the exercise of any choice they would make 
[R. 278, 173]. They were assured that nothing will hap- 
pen to their jobs, that none would be discharged because 
of their participation in the union movement and that no 
change would be made in working conditions or wages 
[R. 476, 477, 173]. Potruch flatly stated that to do any 
of these things might entail a charge of an unfair labor 
practice and that the respondent did not intend to commit 
any unfair labor practice [R. 277]. It would be difficult 
to conceive language which would give to the employees a 
fairer explanation of their rights and the respect that re- 
spondent intended to afford the exercise of those rights. 
The only promises that Potruch gave the employees was 
that their respective rights would be jealously guarded and 
maintained. 

With respect to the statements of Potruch as to steps 
that could be taken to test any portion of a representation 
proceedings, they are statutorily sound. Even the Board 



—14— 

concedes this [R. 58]. Mr. Potruch cannot be blamed for 
the involved mechanics of the statute for testing such sub- 
jects. The Congress and the courts have established that 
mechanism, not Mr. Potruch. All Potruch did was to 
fairly outline these various steps and point to the possi- 
bility that they might be utilized. Such a fair expose of 
the law on the subject cannot be held to contain any threats 
or promises and surely respondent is not foreclosed from 
considering and discussing the advisability of following 
the law. 

In this legal discussion and as the only available statu- 
tory step for testing the validity of a representation de- 
termination Potruch said: 

"I said that it might even — / didn't say it would 
be, but it might even necessitate — that for any com- 
pany, not necessarily Howell, to get a case into the 
United States Circuit Court of Appeals, it might be 
necessary to do something to be cited for an unfair 
act under the National Labor Relations Act, that 
someone might have to be discharged and then a 
charge brought. It didn't have to be Howell; it could 
be somebody else. I only used that as an example. 
(Emphasis added.) 

"And then they would have a hearing on it . . . 
and that after a ruling was handed down, if it was 
unfavorable, then the company would have the right 
to appeal to the United States Circuit Court of Ap- 
peals; if the Trial Examiner was to rule against the 
company and then the Board in Washington ruled 
against us on jurisdiction, that we would have to take 
certain procedures to appeal to the Circuit Court of 
Appeals. 



—15— 

"I told them it was possible to get a case up to the 
Supreme Court with the proper set of facts and have 
the highest court in the land test the question of juris- 
diction." [R. 274.] 

This is manifestly a fair and honest recitation of the 
complicated statutory machinery. 12 

Further, in a discussion of strikes and their attendant 
ramifications, respondent is not prohibited from giving 
its views on the legal as well as the economic aspects of 
such activities. The fact that replacement is legally pos- 
sible in an economic strike is not an invention of respon- 
dent — it is a proclamation of the Supreme Court of the 
United States. (MacKay Radio Corp. v. NLRB, 304 
U. S. 33.) That doctrine, so established, has been re- 
peatedly followed by this and other courts. It is likewise 
settled law that employees engaged in an unfair labor 
practice strike cannot be legally replaced — that also is 
not an invention of respondent. What Potruch said about 
this type of strike was nothing more nor less than what 
this and other courts have been saying for many years. 
Such a repetition of these holdings can in no way be coer- 
cive or reveal any threats of reprisals or promises of 
benefits to the employees. (American Tube Bending Corp. 
v. NLRB, 134 F. 2d 993 (C.A. 2), cert. den. 320 U. S. 
768; Big Lake Oil Co. v. NLRB, 145 F. 2d 967. Compare 
NLRB v. Ford Motor Co., 114 F. 2d 905-914 (C.A. 6); 
Thomas v. Collins, 323 U. S. 516.) 

Finally, to bolster an obvious failure to prove by sub- 
stantial evidence anything violative of Potruch's remarks, 



12 61 Stat. 136, 29 U.S.C., Supp. IV, Sec. 159(d). 



—16— 

the Board points to two isolated statements as revealing 
a sinister purpose in all of these remarks. General Coun- 
sel's witness Kirkland testified, "that Mr. Potruch said 
that there would be no changes in working conditions un- 
less the company asked the union . . . and by God we 
won't do that" [R. 172-173, 276, 175-176]. Potruch de- 
nied making this statement [R. 281]. The Board has 
prejudicially and erroneously resolved the credibility in 
favor of Kirkland over an accredited officer of this court. 
Fifteen of respondent's employees attended and heard the 
remarks of Potruch. Only Kirkland testified that Potruch 
made this remark. The fact that fourteen of the wit- 
nesses, who were present, did not corroborate Kirkland is 
completely disregarded and a witness with a proven animus 
is believed over an officer of this court. Such a tenuous 
resolution of credibility should not be condoned by this 
court. (Universal Camera Corp. v. NLRB, 340 U. S. 
474; NLRB v. Pittsburgh S. S. Co., 340 U. S. 489; NLRB 
v. Universal Camera Co., 190 F. 2d 429.) It is apparent, 
on the record considered as a whole, that Potruch did not 
make this remark. But even if made, the remark does 
not contravene the act because Potruch was only saying 
that he would not consult with the union until the majority 
status of the union was established by the Board. 

Another bit of testimony taken by the Board out of 
context and magnified out of proportion, is the testimony 
of George Smith that, during the second series of meet- 
ings, Potruch said "there would be a new deal after the 
first of the month" [R. 201]. Here again, only one of 
the entire staff attending these meetings gave a discon- 
nected statement which is eagerly grasped and credited 
over an officer of this court. The Board disregards the 
further fact that the witness had a marked hostility to 



—17— 

respondent because the latter had discharged him for be- 
ing drunk on the job [R. 259]. Assuming, arguendo 
such a statement was made, it did not, according to th^ 
Board's decisions amount to an unfair labor practice, be- 
cause of its ambiguous nature. {W estinghouse Electric 
Corp., 77 NLRB 1058.) 

2. The Conduct of Frank Ogan Is Not Imputable to 
Respondent. 

At the outset of the discussion of this phase of the 
case it is necessary to call the attention of the court to the 
fact that the Board's General Counsel made no attempt to 
prove that Ogan was a supervisor within the meaning of 
the Act, so as to bind respondent by his conduct. 

The Act defines a supervisor as: 

"Any individual having authority, in the interest 
of the employer, to hire, transfer, suspend, lay off, re- 
call, promote, discharge, assign, reward, or discipline 
other employees, or responsibility to direct them, or 
to adjust grievances or actively to recommend such 
action, if in connection with the foregoing the exer- 
cise of such authority is not of a merely routine or 
clerical nature but requires the use of independent 
judgment. (61 Stat. 136, 29 U. S. C, Supp. IV, Sec- 
tion 152(11))." (Emphasis added.) 

The General Counsel did not even attempt to prove that 
Ogan possessed any of the above mentioned statutory 
requirements. That the burden of proof is on the General 
Counsel is a legal tenet which does not permit argument, 
and where the evidence fails to show, that a purported 
supervisor possess one or more of the necessary statutory 
requisites, such a person cannot be classed as a supervisor 



—18— 

within the meaning of the statutory definition. 13 (NLRB 
v. Budd Mfg. Co., 169 F. 2d 571 (C.A. 6) (1950) ; E. B. 
Law & Son, 91 NLRB 136.) 

It is true that in the record Ogan was referred to as a 
foreman of the body shop, but he was also referred to as 
a body man [R. 101]. The mere attachment of the 
appellation of foreman without proof of the presence 
of the statutory requisites does not convert Ogan into a 
supervisor within the congressional definition. (Endicott 
Johnson Co., supra.) All Board decisions, since the ad- 
vent of the Taft-Hartley Act, dealing with determinations 
of supervisors have stressed the necessity of the presence 
of one or more of the types of authority set forth in the 
act. (See Sioux City Brewing Co., 85 NLRB 194, where 
it was held that an employee without the authority to 
hire, discharge or otherwise affect employee status was 



13 The Senate in reporting its amendment to include a definition 
of a supervisor clearly laid out its intention to be the drawing of 
a line between supervisors that are truly management and minor 
supervisors having no such connections. Senate Report No. 105 on 
S. 1126 said: 

"In drawing an amendment to meet this situation, the com- 
mittee has not been unmindful of the fact that certain em- 
ployees with minor supervisory duties have problems which may 
justify their inclusions in that act. It has therefore distin- 
guished between straw-bosses, leadmen, set-up men, and other 
minor supervisory employees on the one hand, and the super- 
visor vested with genuine management prerogatives as the right 
to hire or fire, discipline, or make effective recommenda- 
tions with respect to such action. In other words the com- 
mittee has adopted the test which the Board itself has made 
in numerous cases when it had permitted certain categories of 
supervisory employees to be included in the same bargaining 
unit with the rank and file. Bethlehem Steel Co., 65 NLRB 
284 (expeditors) ; Pittsburgh Equitable Meter Co., 61 NLRB 
(group leaders with authority to give instructions and to lay 
out the work) ; Richard Chemical Works, 65 NLRB 14 (su- 
pervisors who are mere conduits for transmitting orders) ; 
Endicott Johnson Co., 67 NLRB 1342, 1347, {persons having 
title of foreman and assistant foreman but with no authority 
other than to keep production moving). . . ." (Emphasis 
added.) 



—19— 

not a supervisor; Calumet & Hecla Consolidated Copper 
Co., 85 NLRB 28, where employees without the statutory 
requisites were held not to be supervisors; and gang fore- 
man who does not possess or exercise the power of effective 
recommendation or responsible direction over a crew, War- 
ren Petroleum Corp., 97 NLRB 226 (January 31, 1952), 
ad infinitum.) 

Not only does the record fail to show that Ogan pos- 
sessed any of the statutory requirements of a supervisor, 
but the contrary is cogently revealed. Howell testified 
without contradiction that Ogan was under the supervision 
of the service manager [R. 90], and Bordeau, the Service 
Manager testified without contradiction that it was his duty 
to supervise the body shop [R. 250]. Further the only 
other evidence of the exercise of any of the statutory 
requirements, so far as the body shop is concerned was 
performed, not by Ogan but by Bordeau when he dis- 
charged George Smith and another employee for drunken- 
ness on the job [R. 258-259]. 

In addition to these negations of Ogan's supervisory 
position, Howell testified without contradiction that when 
he gave instructions to his supervisory staff that there 
was to be no partiality shown in any direction, no dis- 
crimination, no one was to be fired and that the company's 
position would remain absolutely neutral Ogan was not 
included in the supervisory staff [R. 236-237]. As we 
have heretofore pointed out, Ogan was classed as a 
body man and so carried on the company's payroll [R. 
101]. 

It is now well settled that an employer is not respon- 
sible for the anti-union conduct of its non-supervisory 
employees. (NLRB v. McGough Bakeries Corp., 153 F. 
2d 420 (C A. 5); Mylan-Sparta, 78 NLRB 1144.) 



—20— 

Assuming, for purpose of argument, that Ogan had been 
proven to be a supervisor, the conduct and statements 
attributed to him are isolated and do not show that they 
stem from any source of responsible management. On 
the contrary, the undisputed and uncontradicted instruc- 
tions of Howell was to maintain strict neutrality, that there 
were to be no discharges or discriminations which in- 
structions from time to time he personaly checked and re- 
emphasized [R. 236-237]. Under the applicable cases, 
even though Ogan was a supervisor, such statements not 
coming from responsible management have been repeatedly 
held by the courts and the Board not to amount to unfair 

labor practices. (NLRB v. Montgomery Ward Co., 

F. 2d , 29 LRRM 2041 (C. A. 2) ; Sax v. NLRB, 171 

F. 2d 769 (C. A. 7) ; NLRB v. Fairmont Creamery Co., 
144 F. 2d 128 (C. A. 10) ; NLRB v. West Ohio Gas Co., 
172 F. 2d 685 (C. A. 6) ; NLRB v. Tennessee Coach Co., 

F. 2d , 28 LRRM 2334 (C. A. 6) (1951); 

NLRB v. Hinde & Danche Co., 171 F. 2d 240 (C. A. 4) ; 
Jacksonville Paper Co. v. NLRB, 139 F. 2d 148.) 

3. The Purported Statements of Jackson Howell. 

About two weeks before the election (June 11, 1950), 
Jackson Howell, president of respondent, and an employee 
named Ed Daly had a conversation in the body shop. They 
were later joined by George Smith. During this conversa- 
tion Daly asked Howell, "How about the union and when 
are we going to get a raise?" Howell replied, "Ed, I 
can't talk about it to you. I can't answer your questions 
because I don't know. You were at the meeting when 
Potruch spoke, when he said no cuts in salary, no dis- 
charges, no increases. So until the matter is disposed of, 
I am not in a position to answer your questions" [R. 240- 
242]. Smith arrived during the time that Daly was ask- 



—21— 

ing for the raise and the conversation held between Howell 
and Daly is the same conversation in which Smith testified 
that Howell said that if the union was voted out they 
were going to 50% the first of the month [R. 198- 
199]. Howell specifically denies that he made any such 
statement [R. 242] or that he stated to Smith that if the 
union came in there would be a strike. Two things are 
significant about this purported conversation and must be 
taken into consideration since the Board has chosen to 
believe Smith's version rather than the truthful version 
of Howell. Daly, with whom the conversation originated, 
was called as a witness by the General Counsel, but was 
not asked any questions concerning this conversation and 
Smith, whom we have shown to be a drunkard with a 
strong animus towards respondent is unworthy of belief 
[R. 259]. In resolving the credibility, the Trial Examiner 
and the Board have deliberately ignored the surrounding 
facts and conditions. The statement is isolated out of 
context, and thus considered. Further these findings are 
wholly inconsistent with the well proved position of re- 
spondent, corroborated by all the witnesses, that the respon- 
dent's position of neutrality was not only proclaimed, but 
zvas a practiced fact [R. 171-173, 181-183-187, 241, 289 
290, 291-292, 293-294, 297, 298-299, 300-301]. 

In the same vein is the purported statement of Howell 
to Boyce Skelton who says he was merely walking along 
when Howell approached him and without any further to 
do stated that if the union was defeated everybody would 
get a raise [R. 227]. Skelton did not remember any- 
thing else that was said, he didn't remember the time and 
testified that he had not had a previous conversation with 
Howell. This is another instance where the Trial Exam- 
iner and the Board resolved the credibilty on tenuous 
evidence over the strong and honest denial of Howell. 



—22— 

William Hansen after much leading and brow beating 
by the General Counsel stated that Howell had told him 
to vote for the company and he would get a raise [R. 208- 
212], but when Hansen's testimony is read in full text the 
unreliability of it is inescapable. 

Throughout the record there is demonstrated and studied 
resolve to believe only the witness of the General Counsel 
and to disbelieve all the witnesses presented by the respon- 
dent. Such resolutions of credibility are to be scrutinized 
carefully by the court in order to insure to respondent the 
requisites of due process. (Universal Camera Corp. v. 
NLRB, supra; NLRB v. Universal Camera Corp., supra.) 

4. The Purported Statement of Rowland Bordeau. 

The Board has found that Bordeau, respondent's Service 
Manager made a statement that if the shop went union 
Howell would shut his doors [R. 196-197]. This state- 
ment was supposed to have been made to Kenneth Herrick, 
an employee, in the presence of George Smith. The state- 
ment was purportedly made at a cocktail bar. Both Her- 
rick and Bordeau denied that such a statement was made 
[R. 257-258, 287]. In this instance the Board becomes 
positively ridiculous in the credibility resolution and be- 
lieves Smith over the actual conversational participants 
even though Smith testified that he was not interested in 
the conversation and that he didnt pay too much attention 
to it [R. 197]. These findings are certainly inconsistent 
with the preponderance of the evidence and the conclusion 
palpably is that no such statement was made. 

Upon this record considered as a whole it is obvious 
that respondent did not commit any acts that are viola- 
tive of Section 8(a)(1) of the Act, and that the Board's 
findings in these respects are not supported by substantiai 
evidence and should be set aside. 



—23— 
POINT III, 

The Board's Findings That Respondent Discrimina- 
torily Discharged Claude Leonard in Violation of 
Section 8(a)(3) of the Act Are Not Supported by 
Substantial Evidence on the Record Considered 
as a Whole. 

Respondent contends that Claude Leonard was dis- 
charged for reasons of lack of sufficient available work. 
On the other hand, the Board found, and is here insisting 
that the record fully supports its findings that Leonard 
was discharged for union membership and activities. The 
record is silent as to any knowledge by respondent that 
Leonard engaged in any union activities except that he like 
several other employes wore their union buttons while 
on duty, in short, the only knowledge respondent had of 
Leonard's union activities was the fact that he displayed 
a union button. While the record does show that Leonard 
was instrumental in obtaining several of the employees 
signatures to union designation cards, there is not one iota 
of evidence that such activities were known by respondent 
or its officers and agents. 

It must be remembered that Leonard was not the only 
employee who wore a union button. Seven other em- 
ployees who attended the union meeting of January 30, 
1950, also appeared the next day wearing union buttons 
and continued to do so throughout the period here in- 
volved and none of the seven were in anywise mistreated. 
In fact, Herrick, to whom the work of Leonard was as- 
signed, attended the same meeting and wore his union but- 
ton all during the time Leonard was wearing his. 

It is apparent that the Board has refused to credit the 
fact that respondent was unaware of any union activities 
of Leonard except the button display. 



—24— 

We believe the court cannot overlook the established fact 
that all respondent knew of Leonard's union activities was 
the wearing of the button. 

"The inference that he was discharged on account 
of such activities may not be drawn from the fact that 
the activities preceded the discharge. Post hoc ergo 
propter hoc is not sound logic." {Tampa Times Co. 

v. NLRB, F. 2d , 29 LRRM 2288 (C.A. 5), 

NLRB v. Cen-Tennial Cotton Gin Co., F. 2d 

, 29 LRRM 2289; Pittsburgh S. S. Co. v. NLRB, 

180 F. 2d 731, affirmed, 340 U. S. 489.) 

Prior to his dismissal, Leonard was assigned to do the 
"brake work" while Herrick, also a union adherent and 
one who wore his union ensign, was assigned the perform- 
ance of "front-end and frame straightening" work. There 
is no question but that the amount of available work for 
these two jobs was decreasing and that neither Leonard 
nor Herrick was receiving full time compensation. 

The decision of respondent to discontinue one of the 
jobs and combine the work with another, was a decision 
which respondent could and did lawfully make The Act 
does not interfere with the normal exercise of the rights 
of an employer to govern his working arrangements or 
to select his employees or to discharge them. (NLRB v. 
Jones & Laughlin Steel Co., 301 U. S. 1.) It is undisputed 
that both Howell and Bordeau felt that Herrick was the 
better of the two men to be given the combined job. They 
were in part motivated to this decision by the admitted 
fact that Leonard could not operate the frame straightening 
machine [R. 160] and that Herrick could. Bordeau had 
observed and watched the work of both and intimately 
knew their various qualifications [R. 253]. Bordeau had 
previously attempted to have Leonard work on "front- 



—25— 

ends," which work Leonard stated he did not care to do 
[R. 253-254, 268-269, and 265]. Leonard was told at the 
time he was discharged it was because he was not a front- 
end man [R. 269]. The only protest made by Leonard 
was that he had more seniority than Herrick. 13a 

Respondent not only combined the duties of these two 
jobs but the equipment of each was moved to the "front 
end" location, and the space thus vacated was used by the 
line mechanics. It is undisputed that from the time Leon- 
ard was discharged on March 21, 1950, until the time of 
the hearing in October, 1951, no person had been employed 
to replace Leonard [R. 287]. 

The Board and Trial Examiner stresses the point that 
because Herrick's compensation nearly doubled, it proves 
that Leonard's discharge was discriminatory. There is 
nothing phenomenal about this. When there are two half 
jobs and they are combined into one, the fact that two 
halves equal a whole does not rebut the conclusions that 
there was insufficient work for two men, but rather sus- 
tains the respondent's position. The increase in compen- 
sation under such a combination is a matter of simple 
arithmetic. 14 

In sum the evidence shows on the side of the Board's 
findings only that Leonard wore his union button which 
was observed by respondent. Conversely, the evidence 
shows that Leonard's other activities were unknown to 
management; that there was good reason to combine the 



13a Respondent had never followed any system of seniority with 
respect to employee status. 

"Although the complaint alleged that prior to his discharge re- 
spondent had discriminated against Leonard by assigning part of 
his work to others, neither the Board nor the Trial Examiner 
found this to be a fact. 



—2^ 

two jobs; that management's choice between Leonard and 
Herrick was because of the belief that Herrick was a 
superior employee; that admittedly Leonard could not per- 
form all of the required functions and Herrick was quali- 
fied; that both Herrick and Leonard had been union ad- 
herents from the start and both had worn their union 
buttons while at work; that none of the other union men 
were in anywise mistreated or discriminated against; that 
undisputedly respondent's president had issued instructions 
against discrimination and had checked and rechecked to 
see that these instructions were carried out ; that admittedly 
the employees were assured by Potruch that there would 
be none discharged for union activities, and that the em- 
ployees were assured of their inviolable right to join the 
union. 

The Board is required to bottom its findings on the 
''preponderance of the testimony taken" 15 and "no order 
of the Board shall require reinstatement of any individual 
as an employee who has been suspended or discharged, or 
the payment to him of any back pay, if such individual 
was suspended or discharged for cause." 16 

The above summation manifestly shows that the evidence 
preponderates in favor of a discharge for cause. Even 
though it fails in this, nevertheless the burden of proof 
is upon the Board to show that the discharge was for 
union activities, which it has failed to do. 

Membership in a union is not a guarantee against dis- 
charge and when real grounds exist for discharge, man- 
agement is not prevented, by union membership or activi- 
ties from making discharges. (NLRB v. Fulton Bag & 



15 61 Stat. 136, 29 U.S.C, Supp. IV, Sec. 160(c). 
"Ibid. 



—27— 

Cotton Mills, 175 F. 2d 675 (C.A. 5) ; NLRB v. Clara-Val 

Packing Co., F. 2d , 28 LRRM 2579 (C.A. 9); 

NLRB v. Tennessee Coach Co., supra; NLRB v. Universal 
Camera (C.A. 2) (on remand) supra.) 

The amendment to the Wagner Act was intended to and 
did give legislative disapproval to practices of the Board 
whereby it could and did single out one bit of evidence and 
disregard the rest, in making findings. Now the findings 
must be supported by the preponderance of the evidence 
in the record considered as a whole {Pittsburgh S. S. Co. 
v. NLRB, 180 F. 2d 731, affirmed 340 U. S. 489; Univer- 
sal Camera v. NLRB (Supreme Court), supra.) 

Findings of the Board, such as here, may not rest on 
suspicion and conjecture and inference may not be drawn 
upon false inferences. (NLRB v. Ray Smith Transport 

Co. (C.A. 5) (Dec. 20, 1951), F. 2d , 29 LRRM 

2202, 2204-2206.) 

The Board seeks to buttress the weakness of its findings 
with respect to Leonard by attempting to show that the 
discharge was set in a background of reprehensible anti- 
union animus. While we have conclusively shown that 
the statements of the company attorney were privileged, 
that respondent is not responsible for the act of Ogan and 
that the resolutions of credibility with respect to the pur- 
ported acts of Howell and Bordeau were against the 
weight of the evidence, nevertheless if such acts were 
violative, they are not conclusive on the discharge of 
Leonard. 

We respectfully submit that the Board has not borne 
the burden of proof that Leonard's discharge was moti- 
vated by his union activities and therefore the finding of 
a violation of Section 8(a)(3) is not supported by sub- 
stantial evidence on the record considered as a whole. 



—28— 

POINT IV. 

The Board's Findings That Respondent Has Refused 
to Bargain in Violation of Section 8(a)(5) Are 
Not Supported by Substantial Evidence on the 
Record Considered as a Whole. 

It is axiomatic, in any consideration of a question of 
refusal to bargain, that the claiming union must represent 
a majority of the employees in an appropriate unit at the 
time of the claim. The law is well settled, requiring no 
citation of authority, that no respondent is required to 
bargain with a minority union. The evidence here clearly 
fails to show that at the time, January 31, 1950, when the 
union made its demand, it possessed the necessary majority 
designations. 

1. The Letter of January 31, 1950, Was Not a Demand Which 
Respondent Was Required to Comply With. 

Under date of January 31, 1950, the union forwarded 
a letter to respondent in which it laid claim to a majority 
and requested collective bargaining [R. 214]. Admittedly 
only eight employees had chosen the union of January 30, 
1950 (supra, p. 3). Sometime during the day of Janu- 
ary 31, 1950, six more employees signed designation cards 
(supra, p. 3), the exact times of affixing their signatures 
is not established. Nor is it established at what time of 
day the letter was written. There is no evidence to show 
whether the letter was written prior to or after the sign- 
ing of these cards on January 31, 1950. On this date there 
were 29 employees in the appropriate unit. 

The Board itself has promulgated a rule that in simi- 
lar situations it would not split a day into fractions, and 
accordingly has held that no proper demand for bargaining 
had been made and dismissed a charge of refusal to bar- 



—29— 

gain. (Brezner Tanning Co., Inc., SO NLRB 894, af- 
firmed NLRB v. Brezner Tanning Co., 141 F. 2d 62 (C. 
A. 1).) It could only be, on the posture of this record, a 
matter of conjecture as to whether, at the time the letter 
was written, the union had received the additional desig- 
nations of January 31, 1950. The statute does not permit 
the drawing of inferences upon mere conjecture. Further, 
when the employees were given an opportunity to express 
their desires by secret ballot, it was conclusively shown 
they did not wish to be represented by this union. In the 
face of this evidence, we believe the court must consider the 
letter to be without probative value and since no valid 
demand was given to respondent, it was under no legal 
duty to reply or acquiesce. 

2. The Record Fails to Show the Majority Status of the 
Union at Any Time. 

On January 31, 1950, there were 29 employees in the 
appropriate unit 17 [R. 101-102]. 

For the purposes of calculation, the Board and the 
Trial Examiner excluded from this number Frank Ogan, 
on the ground that he was a supervisor within the meaning 
of the Act. We have conclusively shown this exclusion 
to be erroneous {supra, pp. 17 to 20). 

Even though we are incorrect in our position with 
respect to Ogan, the record still fails to prove, by proba- 
tive evidence that the union had a demonstrable majority. 



17 The Trial Examiner found and the Board adopted his findings 
that all the respondent's employees, excluding salesmen, office and 
clerical employees, professional employees, guards, and supervisors 
as defined by the Act, constitute a unit appropriate for the purposes 
of collective bargaining within the meaning of Section 9(b) of the 
Act. [R. 47.] Respondent does not contest this finding. 



—30— 

General Counsel's Exhibits 11, 12, 13, 14, IS, 16, 18, 
20, 26, 31, 32, 35, 36 and 37 [R. 117, 119, 122, 124, 
128, 130, 162, 205, 219, 218, 222, 225, 233] are author- 
ization cards purportedly signed on or before January 
31, 1950. In addition Leonard had joined the union 
previous to that time [R. 114]. Thus, the Board reaches 
the conclusion that 15 of 28 persons had designated the 
union on or before January 31, 1950. One of these 
cards [General Counsel's Ex. 16, R. 130] was pur- 
portedly that of one L. A. Malstrom. However, the tes- 
timony failed to show that Malstrom had actually signed 
such card [R. 128-129]. Malstrom was not called to 
identify or authenticate this card and the record reveals 
no reason why he could not have been called for such 
purpose. This card was admitted over the vigorous 
objections of respondent [R. 129] which contended there 
was no testimony to prove the authenticity of the card. 
We submit that the record is insufficient to show that this 
card was a designation of Malstrom and amounted to 
only uncorroborated hearsay and of no probative value 
in the calculation of the union's majority. (Consolidated 
Edison Co. v. NLRB, 305 U. S. 197.) 

Since it was improper to count Malstrom's card in the 
valid designations, the proven number of employees to 
designate the union is reduced to 14, which is not a major- 
ity of 28. 

It therefore follows the General Counsel has failed 
to prove by substantial evidence that the union was ever 
the majority representative. Respondent was at no time 
required by the statute to recognize and bargain col- 
lectively with the union. (NLRB v. Jones & Laughlin 
Steel Co., supra.) 



—31— 

In addition to these considerations, respondent promptly 
upon receipt of the union's claim of exclusive representa- 
tion, denied in good faith and questioned the union's 
majority claim [R. 304-305]. It is undisputed that the 
union, at no time, proffered to respondent any proof to 
support the claim of majority [R. 310]. 

POINT V. 

The Board Acted Improperly and Unjustly in Setting 
Aside the Election in Which Respondent's Em- 
ployees Demonstrated That They Did Not Desire 
to Be Represented by the Union for the Purposes 
of Collective Bargaining. 

As we have shown in Points II, III and IV, that re- 
spondent has not interfered with, restrained or coerced 
its employees, in violation of Section 8(a)(1), that it 
has not discriminated against Claude Leonard, in viola- 
tion of Section 8(a)(3) and that it had not refused to 
bargain in violation of Section 8(a)(5). The record 
cogently shows that the objections to the conduct of the 
election are wholly lacking in merit and are insufficient 
to warrant setting aside the election and its results. With- 
out again setting forth those arguments in detail we 
incorporate them under this heading. 

On January 31, 1950, the union, in addition to writing 
respondent, filed its petition with the Board for certifica- 
tion. On May 5, 1950, after an investigation and formal 
hearing the Board issued its decision in which it found 
that a question of representation existed and directed an 
election to resolve that question. 89 NLRB No. 142 
[R. 12]. Thereafter on June 1, 1950, an election was 
held in which 11 votes were cast for the union; 13 
against and two votes were challenged. On June 6, 1950, 



—32— 

the union filed the charges of these proceedings and also 
filed objections to the election based on the facts alleged 
in the charges. Meanwhile, respondent was engaged in 
the conduct alleged to be unfair labor practices. 

Thus it appears that, after a full and formal hearing 
in a representation proceeding, the Board found a ques- 
tion of representation existed concerning the employees 
here involved and directed an election. The effect of 
findings, a refusal to bargain in this case, is to penalize 
respondent for having previously arrived at the same 
conclusion. The union, itself, when it filed its repre- 
sentation petition indicated its conviction that a question 
of representation existed which ought to be resolved by 
an election. As evidenced by its support of the petition 
through the Board's processes of investigation, hearing, 
election and objection to the election, the union apparently 
still retains that conviction. 

This view is supported by the recent decision in NLRB 

v. John Deere Plow Co., F. 2d , 27 LRRM 

2348 (C.A. 5, Feb. 1951). The court there expressly 
refused to enforce an order to bargain rendered in cir- 
cumstances similar in essential elements to those appear- 
ing here. If any legal doctrine could be said to rep- 
resent well established Board policy, it is the proposition 
that so long as there exists a question of representation, 
there is no legal obligation to bargain. 

If after, what the union supposed was a refusal to 
bargain, the union had one of two courses open to estab- 
lish officially its status as bargaining agent: It could 
have filed a refusal to bargain charge or instituted a 
representation petition. It chose, however, not to wait 
until Respondent acted upon its letter of January 31, 
1950, but filed its representation petition the same day. 



—33— 

Had the union sought the withdrawal of this petition 
upon the happening of acts which it felt were unlawful 
the Board would in all probability have granted the 
request. 

But the union did not do this. Instead it supported its 
petition through a hearing and an election. During 
this period, respondent was engaging in the acts alleged to 
be unfair labor practices. The union certainly knew 
that respondent had not replied to its letter of January 
31, 1950, that Leonard had been discharged and also must 
have known of the acts alleged to be interference and dis- 
crimination. Yet at no time before the election did the 
union protest these activities or file charges based on them. 
Rather it chose to await passively the results of the elec- 
tion. Having chosen to participate in such election as a 
means to establish its bargaining status, the union should 
not thereafter be allowed to recant and seek to pursue a 
remedy it previously chose to ignore. 

It has long been the firm practice of the Board to 
suspend the processing of a representation case when a 
related charge of refusal to bargain is filed. Waivers 
of unfair labor practices are not accepted in such cases 
as they are in situations where other unfair labor prac- 
tices are concerned. This practice is a recognition of the 
fact that inasmuch as a representation matter and a re- 
fusal to bargain proceeding are directed at the same 
end, it would not be consonant with good administration 
to allow both to be prosecuted at the same time. In 
plain English the union is not to be permitted to have 



—34— 

its cake and eat it too. 18 Having confessed that a ques- 
tion of representation existed, by the filing of its repre- 
sentation petition, it clearly sustained the respondent's 
position that the union had no clear demonstrable major- 
ity. To permit the union to recant would constitute a 
miscarriage of justice. 

For these reasons we respectfully submit the Board 
acted improperly in setting aside the election. 

POINT VI. 

The Respondent Was Not Afforded a Fair Hearing 
Before an Impartial Trial Examiner and Was 
Denied Due Process of Law. 

This record discloses a hearing conducted with such 
partiality and unfairness as to amount to a denial of due. 
process. It presents the usual picture of supporting 
findings arrived at by a process of quite uniformly 
crediting testimony favorable to the charges and as uni- 
formly discrediting testimony opposed. (NLRB v. Caro- 
line Mills, 167c F. 2d 212.) Time and time again, the 
Trial Examiner took over the examination of the wit- 
nesses for the General Counsel and by leading and sug- 
gestive questions elicited testimony he wanted in the 
record in order to bolster the Board's case [R. 104. 
105, 106, 108, 112, 113, 115-116, 120, 121, 122, 125, 126, 
128, 129, 131, 133, 134-135, 138, 139, 141-142, 142-143, 
144-145, 146, 147, 148-149, 153, 154, 155, 155-156, 



18 As recently as January 30, 1952, the Board held that the failure 
to file charges of unfair labor practices and an election to proceed 
in a representation matter, constituted a waiver of such acts as valid 
objections to an election. Larsen-Hogue Electric Co., 97 NLRB 
No. 215. 



—35— 

156-158, 179, 192, 194, 197, 199, 202, 207, 210, 216, 
244, 272, 228, 233, 267, 268]. Contrast the eagerness 
with which the Trial Examiner came to the aid of the 
General Counsel in the examination of his witness with 
the failure or reluctance of the Trial Examiner to so 
aid counsel for respondent. It will be noted from these 
record citations that in no instance at all did the Trial 
Examiner attempt to obtain any testimony which in any- 
wise would favor respondent. 

The record inescapably shows that the findings and 
order are without factual or legal basis, and that one 
of the main reasons that this is so is that the Examiner 
completely forgot; that, in the hearing conducted by him, 
the Board was cast in the role of accuser, the Examiner 
in that of judge; that the burden was on the Board to 
prove its charges by competent and credible evidence and 
not upon the respondent to disprove them; and that the 
Examiner was obligated by virtue of his office to hear 
all the witnesses, and to make his determination, fairly 
and impartially, without predilection for any, or prede- 
termination as to the result. 

Turning to the testimony given by the witnesses of 
the General Counsel, it is at once evident that to the 
mind of the examiner, the burden was not on the Board 
to prove violations of the Act, but upon respondent to 
prove that it had committed no wrong. To his eager 
credulity "straws in the wind offered in support of the 
Board's case became hoops of steel, and trifles light as 
air were confirmations strong as proofs from Holy Writ." 
(NLRB v. Ray Smith Transport Co., supra.) 



—36- 

It was in this attitude, so evident in the long and 
argumentative report of the examiner, couched in lan- 
guage not of adjudication but of advocacy which enabled 
the Trial Examiner to find against respondent on every 
issue and to disregard the complete testimony of respon- 
dent's witnesses and give credit to the testimony of the 
Board's witnesses even though the clear weight of the 
evidence was against such conclusions. 

It was this attitude of the Examiner which enabled him 
to disregard and discredit the positive testimony of all 
of respondent's witnesses and the testimony favorable to 
respondent brought out by cross-examination of witnesses 
for the Board. 

It was this attitude that enabled him to find that the 
discharge of Leonard was made for union activity in the 
face of the positive testimony of respondent and its 
officer that the discharge was for cause, that Leonard 
was replaced by a union man and that respondent knew 
nothing of Leonard's activities except the wearing of 
the button. It was this attitude that led to the complete 
disregard of the undisputed evidence that respondent had 
instructed repeatedly there was to be no discrimination 
and that the employees were free to choose the union 
if they so desired. It was this attitude that enabled him 
to disregard the fact that seven known union adherents 
were in nowise mistreated. 

It was this attitude that enabled the Trial Examiner 
to find, without statutory proof, that Ogan was a super- 



—37— 

visor, so that he could find Ogan's extra-curricular ac- 
tivities were responsibilities of respondent. The Trial 
Examiner, as an advocate shrewdly conscious of this gap 
in the evidence hides behind an ancient and discarded 
principle of the Wagner Act which has been completely 
removed by amendment. 

His ruling and findings are based upon suspicion and 
conjecture and display a willingness to believe the worst 
against respondent. He piled inference upon inference, 
unsupported by legal evidence in the record, as his report 
clearly shows. 

The Examiner's approach to this case was obviously 
one of predetermination and when witnesses of the Gen- 
eral Counsel did not testify the way he thought they 
should he took over the examination and led the witnesses 
into saying what he wanted them to say. 

It is well settled law that where a witness' testimony 
is not contradicted, a trier has no right to refuse to 
accept them. (Arnall Mills v. Smallwood, 68 F. 2d at 
59.) Evidence cannot be disregarded just because it 
comes from witnesses of respondent. {Chesapeake & 
Ohio R. Co. v. Marting, 283 U. S. 214; Georgia R. & 
Banking Co. v. Wall, 80 Ga. 202; Penna. R. Co. v. 
Chamberlain, 288 U. S. 333; NLRB v. Russell, 91 F. 
2d 358.) 

The statutory scheme of the Taft-Hartley Act is de- 
signed to afford to all a fair and impartial hearing, the 
lack of which vitiates any and all orders predicated thereon. 



—38— 

Conclusion. 

It is respectfully submitted that the Board's findings 
are not supported by substantial evidence on the record 
considered as a whole; that respondent has not received 
the requisites of due process in the hearing or order; 
that the Board erred in setting aside a valid renunciation 
of the union by respondent's employees; that respondent 
is not engaged in a business over which the Act governs 
and that the order of the Board is invalid and improper 
and should be set aside. 

Respectfully submitted, 

Findlay A. Carter, 
Frederick A. Potruch, 
James M. Nicoson, 

Attorneys for Respondent. 

February, 1952. 



APPENDIX. 

The relevant provisions of the National Labor Rela- 
tions Act, as amended (61 Stat. 136, 29 U. S. C. Supp. 
IV, Sees. 151 ^^ seq.), are as follows: 

Definitions. 
Sec. 2. When used in this Act — 

********* 

(11) The term "supervisor" means any individual hav- 
ing authority, in the interest of the employer, to hire, 
transfer, suspend, lay off, recall, promote, discharge, 
assign, reward, or discipline other employees, or respon- 
sibly to direct them, or to adjust their grievances, or 
effectively to recommend such action, if in connection 
with the foregoing the exercise of such authority is not 
of a merely routine or clerical nature, but requires the 
use of independent judgment. 

Rights of Employees. 

Sec. 7. Employees shall have the right to self-or- 
ganization, to form, join, or assist labor organizations, 
to bargain collectively through representatives of their 
own choosing, and to engage in other concerted activ- 
ities for the purpose of collective bargaining or other 
mutual aid or protection, and shall also have the right to 
refrain from any or all of such activities except to the 
extent that such right may be affected by an agreement 
requiring membership in a labor organization as a con- 
dition of employment as authorized in section 8(a)(3). 



— 2— 

Unfair Labor Practices. 

Sec. 8. (a) It shall be an unfair labor practice for 
an employer — 

(1) To interfere with, restrain, or coerce employees 
in the exercise of the rights guaranteed in section 7; 

(3) By discrimination in regard to hire or tenure of 
employment or any term or condition of employment to 
encourage or discourage membership in any labor organ- 
ization: * * * 

(5) To refuse to bargain collectively with the repre- 
sentatives of his employees, subject to the provisions of 
Section 9(a). 

"(c) The expressing of any views, argument, or 
opinion, or the dissemination thereof, whether in written ; 
printed, graphic or visual form, shall not constitute or 
be evidence of an unfair labor practice under any of the 
provisions of this Act, if such expression contains no 
threat of reprisal or force or promise of benefit. 

Representatives and Elections. 

Sec. 9. (a) Representatives designated or selected 
for the purposes of collective bargaining by the majority 
of the employees in a unit appropriate for such purposes, 
shall be the exclusive representatives of all the employees 
in such unit for the purposes of collective bargaining 
with respect to rates of pay, wages, hours of employment, 
or other conditions of employment : * * * 



— 3— 

"(d) Whenever an order of the Board made pursuant 
to section 10(c) is based in whole or in part upon facts 
certified following an investigation pursuant to subsec- 
tion (c) of this section and there is a petition for the 
enforcement or review of such order, such certification 
and the record of such investigation shall be included in 
the transcript of the entire record required to be filed 
under section 10(e) or 10(f), and thereupon the decree 
of the court enforcing, modifying, or setting aside in 
whole or in part the order of the Board shall be made 
and entered upon the pleadings, testimony, and proceed- 
ings set forth in such transcript/' 

Prevention of Unfair Labor Practices. 

Sec. 10. (a) The Board is empowered, as herein- 
after provided, to prevent any person from engaging in 
any unfair labor practice (listed in Section 8) affecting 
commerce. This power shall not be affected by any other 
means of adjustment or prevention that has been or may 
be established by agreement, law, or otherwise. * * * 

( c ^ * * * jf U pon the preponderance of the testi- 
mony taken the Board shall be of the opinion that any 
person named in the complaint has engaged in or is 
engaging in any such unfair labor practice, then the 
Board shall state its findings of fact and shall issue and 
cause to be served on such person an order requiring such 
person to cease and desist from such unfair labor prac- 
tice, and to take such affirmative action including rein- 
statement of employees with or without back pay, as will 
effectuate the policies of this Act * * * No order 
of the Board shall require the reinstatement of any in- 
dividual as an employee who has been suspended or dis- 
charged for cause. * * * 



(e) The Board shall have power to petition any circuit 
court of appeals of the United States (including the 
United States Court of Appeals for the District of Col- 
umbia), or if all the circuit courts of appeals to which 
application may be made are in vacation, any district court 
of the United States (including the District Court of 
the United States for the District of Columbia) within 
any circuit or district, respectively, wherein the unfair 
labor practice in question occurred or wherein such per- 
son resides or transacts business, for the enforcement 
of such order and for appropriate temporary relief or 
restraining order, and shall certify and file in the court 
a transcript of the entire record in the proceedings, 
including the pleadings and testimony upon which such 
order was entered and the findings and order of the Board, 
Upon such filing, the court shall cause notice thereof to 
be served upon such person, and thereupon shall have 
jurisdiction of the proceeding and of the question deter- 
mined therein, and shall have power to grant such tem- 
porary relief or restraining order as it deems just and 
proper, and to make and enter upon the pleadings, testi- 
mony, and proceedings set forth in such transcript a de- 
cree enforcing, modifying, and enforcing as so modified, 
or setting aside in whole or in part the order of the 
Board. No objection that has not been urged before the 
Board, its member, agent or agency shall be considered 
by the court, unless the failure or neglect to urge such 
objection shall be excused because of extraordinary cir- 
cumstances. The findings of the Board with respect to 
questions of fact if supported by substantial evidence on 
the record considered as a whole shall be conclusive. * * * 



No. 13140 



In the United States Court of Appeals 
for the Ninth Circuit 



National Labor Relations Board, petitioner 

v. 
Howell Chevrolet Company, respondent 



ON PETITION FOR ENFORCEMENT OF AN ORDER OF THE 
NATIONAL LABOR RELATIONS BOARD 



REPLY BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD 



GEORGE J. BOTT, 

General Counsel, 

DAVID P. FINDLING, 

Associate General Counsel, 
A. NORMAN SOMERS, 

Assistant General Counsel, 
MARCEL MALLET-PREVOST, 
WILLIAM J. AVRUTIS, 

Attorneys, 
National Labor Relations Board. 



WAR 2 9 1952 
p AUL p. O'BRIEN 

CLERK 



INDEX 



AUTHORITIES CITED 

Cases : Pag© 

Bethlehem Steel Co., 89 N. L. R. B. 132 5 f 14 

Bethlehem Steel Co., 120 F. 2d 641 (C. A. D. C.) 8 

M. H. Davidson Company, 94 N. L. R. B. No. 34 3 

Denton Sleeping Garment, Inc., 93 N. L. R. B. 329 4, 13, 17 

Endicott Johnson Co., 67 N. L. R. B. 1342 1 

Ensher, Alexander & Barsoom, 74 N. L. R. B. 1443 4 

Joy Silk Mills, Inc., 85 N. L. R. B. 1263 14 

Joy Silk Mills v. N. L. R. B., 175 F. 2d 732 (C. A. D. C), cer- 
tiorari denied, 341 U. S. 914 6 

N. L. R. B. v. Auburn Foundry, Inc., 119 F. 2d 331 (C. A. 7) 9 

N. L. R. B. v. Baldwin Locomotive Works, 128 F. 2d 39 (C. A. 3)__ 8 

N. L. R. B. v. John Deere Plow Co., 187 F. 2d 26 (C. A. 5) 7, 14, 16 

N. L. R. B. v. Flotill Products, Inc., 180 F. 2d 441 (C. A. 9) 4 

N. L. R. B. v. Franks Bros. Co., 137 F. 2d 989 (C. A. 1), affirmed, 

321 U. S. 702 8 

N. L. R. B. v. Pittsburgh Steamship Co., 337 U. S. 656 8 

N. L. R. B. v. Robbins Tire & Rubber Co., 161 F. 2d 798 (C. A. 5)_. 8 

N. L. R. B. v. Standard Steel Spring Co., 180 F. 2d 942 (C. A. 6)__ 4 

/. J. Newberry Co., 88 N. L. R. B. 947 5, 14 

Radio Corporation of America, 74 N. L. R. B. 1729 5, 14 

United States v. Yellow Cab Co., 338 U. S. 338 8 

Statutes : 

National Labor Relations Act, as amended (61 Stat. 136, 29 
U. S. C, Supp. IV, Sees. 151, et seq.): 

Section 8 (a) (5) 6 

Section 9 (c) 2 

(I) 



994290—52- 



In the United States Court of Appeals 
for the Ninth Circuit 



No. 13140 

National Labor Relations Board, petitioner 

v. 

Howell Chevrolet Company, respondent 



ON PETITION FOR ENFORCEMENT OF AN ORDER OF THE 
NATIONAL LABOR RELATIONS BOARD 



REPLY BRIEF FOR THE NATIONAL LABOR RELATIONS BOARD 

This reply brief is directed to two of the points 
discussed in respondent's brief, namely, Point V — the 
contention that the Board improperly set aside the 
election, and Point VI — the contention that the trial 
examiner was biased and failed to afford respondent 
a fair hearing. 1 

1 We here wish to make brief reference, however, to one aspect 
of another of respondent's contentions — that which concerns the 
supervisory status of Foreman Ogen (Bd. Main Br., 15-17, Resp. 
Br., 17-20). Respondent relies (Br. 18, n. 3) on that portion of 
the Senate Report (No. 105 on S. 1126) which cites Endicott 
Johnson Co., 67 N. L. R. B. 1342, 1347, as a case where the Board 
held that certain "persons having title of foreman and assistant 
foreman but with no authority other than to keep production 
moving" were not supervisory employees. As it happens, the 
employees in the Endicott case had neither title of "foreman or 
assistant foreman," but were referred to in the Board's decision 
as "so-called 'supervisory employees'." While the Board would 

(1) 



Respondent contends in Point V of its brief (pp. 
31-34) that because the Union did not withdraw its 
representation petition (filed at the same time the 
Union initially requested respondent to bargain) and 
participated in the election, it waived, as a basis for 
objection to the election, the unfair labor practices 
which occurred, with its knowledge, between the time 
of the filing of the petition and the holding of the 
election. Respondent's position appears to be that 
until the Board resolved the question of representa- 
tion assertedly involved in the proceeding initiated 
by the Union under Section 9 (c) of the Act, 2 respond- 
ent could not properly recognize any union as the ex- 
clusive bargaining representative of its employees, and 
that the only "resolution" possible was that which 
accorded with the tally of the ballots cast in the elec- 

be the first to assert that mere nomenclature is not conclusive, 
respondent seems to have missed the clear distinction between a 
self-serving declaration and an admission against interest. Ui 
course, an employer may not foreclose the right of others by the 
use of a title which falsely describes a person's duties, but neither 
is he in a position to discount the inference flowing from his vol- 
untary act of according a person a rank and title clearly connoting 
supervisory duties and responsibilities. 

' Section 9 (c) of the Act, in pertinent part, reads as follows: 
"Whenever a petition shall have been filed * alleging 

that a substantial number of employees wish to be represented for 
collective bargaining and that their employer declines to recog- 
nize their representative * * *, the Board shall investigate 
such petition and if it has reasonable cause to believe that a ques- 
tion of representation affecting commerce exists shall provide tor 
an appropriate hearing upon due notice. * * If the Board 

finds upon the record of such hearing that such a question of rep- 
resentation exists, it shall direct an election by secret ballot and 
shall certify the results thereof." 



tion showing the Union to have polled less than a 
majority. This inference, so respondent argues, flows 
from the Union's action in pursuing the representa- 
tion proceeding through to the election instead of 
filing unfair labor practice charges with the Board, 
thus " waiving" the unfair labor practices as a basis 
for objection to the election. But this contention 
overlooks the distinction between proceedings involv- 
ing a bona fide representation question and those dis- 
covered as a result of later employer misconduct never 
to have involved a genuine question in the first 
instance. 

The Board's policy with respect to the latter type 
of case, of which the instant case is an example, is 
discussed in its decision in M. H. Davidson Company, 
94 N. L. R. B. No. 34. 3 There the Board pointed out 
that the "waiver" proposition under discussion has 
been applied by the Board only in those cases in 
which a bona fide question of representation, within 
the meaning of Section 9 (c) of the Act, was raised by 
the employer's rejection of the imion's bargaining re- 
quest because the employer had a good faith doubt as 
to the union's claimed majority status. When the 
union thereupon files a petition under Section 9 (c) 
the statutory machinery for determining the employees' 
choice of representatives begins to operate. 4 In 

3 Since Volume 94 of the Board's decision is not yet in print 
we have reproduced in the Appendix hereto both the majority 
and minority opinions in the Davidson case. 

4 When a petition is filed under Section 9 (c) "alleging that a 
substantial number of employees wish to be represented for col- 
lective bargaining and that their employer declines to recognize 
their representative,'' the Board, through a Regional Director, 
makes a preliminary investigation to determine whether there is 



such a case, where the employer commits unfair labor 
practices subsequent to the union's filing of the peti- 
tion but the union "did [not] file any unfair labor 
practice charges * * * [but] instead * * * 
took its chances, preferring to await the result of the 
election," the Board has held that the union is bound 
by the election results and may not upset them by 
belatedly pointing to the employer's improper con- 
duct of which it had knowledge prior to the election. 
Denton Sleeping Garment Mills, Inc., 93 N. L. R. B. 
329, 330, and cases there cited. 

The Board finds this so-called "waiver" rule inap- 
plicable, however, in cases where, as here and in 
Davidson, supra, the "question" which gave rise to 
the whole election proceeding turns out to be no ques- 
tion at all because the employer's challenge of the 
union's initial bargaining request was not based upon 
a good faith doubt as to the union's asserted majority 
status. As the Board held in the Davidson case : 

* * * to apply the waiver doctrine here, 
would require complete disregard of the 
Board's obligation to enforce the public policy 

"reasonable cause to believe that a question of representation af- 
fecting commerce exists" (Section 9 (c) of the Act). If the in- 
vestigation discloses such "reasonable cause" the Board conducts 
a hearing to make a definite determination whether "such a ques- 
tion of representation exists." If the Board finds that no question 
exists it dismisses the petition. If it finds that a question does 
exist, it orders an election to resolve it, and certifies the election 
results. It is plain that under the very terms of the statute the 
mere filing of a petition does not automatically raise a "question 
concerning representation." Ensher, Alexander <& Barsoom, 74 
N. L. R. B. 1443, 1444-1445. Cf. N. L. R. B. v. Flotill Products, 
Inc., 180 F. 2d 441 (C. A. 9) ; N. L. R. B. v. The Standard Steel 
Spring Co., 180 F. 2d 942, 945-946 (C. A. 6) . 



against those refusals to bargain which are 
successful in inducing a union to file a peti- 
tion — and in inducing the Board, in the repre- 
sentation proceeding, to find a question of repre- 
sentation — in the mistaken belief that a question 
of representation had in fact arisen. Here, the 
unfair labor practice which initiated the elec- 
tion did not occur after a genuine question 
of representation had arisen, but was the very 
refusal to bargain which induced both the 
Union and the Board to conclude, albeit er- 
roneously, that such a question had arisen, and 
which induced the filing of the petition. In 
such a situation the Board's statutory obliga- 
tion to prevent refusals to bargain and to en- 
force the public policy enunciated by the Act 6 
is paramount. The Board cannot permit a 
possible waiver by a private party to overrule 
this policy. [ 5 ] 

6 See Radio Corporation of America, 74 N. L. R. B. 
1729, where the employer argued that the election should 
not be invalidated despite its own extensive unfair labor 
practices, because the Union knew of these practices be- 
fore the election but nevertheless chose to proceed with 
the election. In rejecting this argument, the Board 
pointed out that the employer was trying to immunize 
"its own wrongful conduct" (emphasis in original). Mr. 
Reynolds' dissent appears to have hinged upon what he 
considered the Union's "abuses of the Board's process," 
a conclusion not supported by the record in this case. 

Similarly, the Board has declined to give effect to other 
restrictions upon collective bargaining when outweighed 
by the policy of protecting the statutory rights of em- 
ployees. See Bethlehem Steel Co., 89 N. L. R. B. 132, 
and cases cited therein ; J. J. Newberry Co., 88 N. L. R. B. 
947. 



5 Although the Union in the present case filed its petition on 
the same day that it mailed its bargaining request to respondent 



6 

In the instant case the Board certainly cannot be 
said to have acted arbitrarily in following the policy 
it did, and in refusing to permit respondent to use 
the representation proceeding as a protection for its 
unlawful refusal to bargain and its subsequent out- 
right campaign to destroy the Union's majority (Bd. 
Main Br., 20-22). Clearly applicable is Joy Silk 
Mills, Inc. v. N. L. R. B., 185 F. 2d 732 (C. A. D. C.), 
certiorari denied, 341 U. S. 914, upon which the 
Board relied (R. 62, n. 14). There the Court said 
(185 P. 2d, at p. 741) : 

When, however, such refusal is due to a de- 
sire to gain time and to take action to dissipate 
the union's majority, the refusal is no longer 
justifiable and constitutes a violation of the 
duty to bargain set forth in Section 8 (a) (5) 
of the Act. [Citing cases.] The Act provides 
for election proceedings in order to provide a 
mechanism whereby an employer acting in good 
faith may secure a determination of whether 
or not the union does in fact have a majority 
and is therefore the appropriate agent with 
which to bargain. Another purpose is to in- 
sure that the employees may freely register 
their individual choices concerning representa- 
tion. Certainly it is not one of the purposes 
of the election provisions to supply an employer 
with a procedural device by which he may 
secure the time necessary to defeat efforts 
toward organization being made by a union. 

(R. 21), the applicable principle is the same. It remains that 
respondent's bad faith refusal to bargain gave rise to the false 
"question" which was the basis for the representation proceeding. 



See also the discussion in our main brief at pages 
20-22. 

Respondent's contrary contention, that the Board 
should not have set the election aside here, but should 
have found on the basis of the election that the Union 
had no majority, and that therefore respondent was 
under no obligation to bargain with it, is borrowed 
almost entirely from Member Mur dock's dissent in the 
Davidson case, supra. Respondent's argument, how- 
ever, overlooks the plain fact that the disagreement 
between the majority and the dissent concerned only 
the choice between alternative policies, each being 
plainly within the framework of a reasonable exercise 
of the Board's discretion. 6 

II 

Respondent's claim that the trial examiner did not 
accord it a fair hearing is without substance. Exam- 
ination of the record at the places which respondent 
cites at pages 34 and 35 of its brief, far from showing 
any impropriety on the part of the trial examiner, 
demonstrates that he was conscientious in carrying 
out his function as presiding officer and properly 
alert to protect the record against uncertainty and 



«N. L. R. B. v. John Deere Plow Co., 187 F. 2d 26 (C. A. 5) 
(Resp. Br. 32), is not in point. What was involved there was 
not a finding of a bad faith refusal to bargain at the outset, but 
at a later stage in the representation proceedings when the union, 
after losing the election, again demanded bargaining in the face 
of the fact that the Board had not yet passed on its objections 
to the election. The dissenting view there was that, under the 
circumstances, it was not bad faith for the employer to reject the 
bargaining request at that stage. See 82 NLRB 69, 70-72, 75. 

994290—52 2 



s 

ambiguity. "It is the function of an examiner, just 
as it is the recognized function of a trial judge, to see 
that the facts are clearly and fully developed. He is 
not required to sit idly by and permit a confused or 
meaningless record to be made." Bethlehem Steel Co. 
v. N. L. R. B., 120 F. 2d 641, 652 (C. A. D. C.) ; 
N. L. R. B.v. Baldwin Locomotive Works, 128 F. 2d 
39, 46 (C. A. 3) ; N. L. R. B. v. Franks Bros. Co., 137 
F. 2d 989, 991 (C. A. 1), affd., 321 U. S. 702. 

Moreover, even assuming arguendo that, as respond- 
ent claims (Br., 34, 36-37), the trial examiner " quite 
uniformly credit [ed] testimony favorable to the 
charges and as uniformly discredit [ed] testimony op- 
posed," the trial examiner is not thereby shown to 
have been biased and prejudiced against respondent. 
In N. L. R. B. v. Pittsburgh Steamship Co., 337 U. S. 
656, the Supreme Court reversed the holding of the 
lower court which had found that such a circumstance 
in itself showed bias. The Supreme Court said 
(p. 659) : 

We are constrained to reject the court's con- 
clusion that an objective finder of fact could 
not resolve all factual conflicts arising in a 
legal proceeding in favor of one litigant. The 
ordinary lawsuit, civil or criminal, normally 
depends for its resolution on which version of 
the facts in dispute is accepted by the trier of 
fact * * * Accordingly, total rejection of 
an opposed view cannot of itself impugn the 
integrity or competence of a trier of fact. 

Accord: United States v. Yellow Cab Co., 338 U. S. 
338, 341; N. L. R. B. v. Robbins Tire & Rubber Co., 



9 



161 F. 2d 798, 800 (C. A. 5). See also N. L. R. B. v. 
Auburn Foundry, 119 F. 2d 331, 333, C. A. 7). 



CONCLUSION 



It is respectfully submitted that the record amply 
reveals that the Board's findings are supported by 
substantial evidence, that respondent received a full 
and fair hearing and that the Board's order should 
be enforced in full, as prayed in the Board's petition 
for enforcement. 

George J. Bott, 

General Counsel, 
David P. Findling, 

Associate General Counsel, 
A. Norman Somers, 

Assistant General Counsel, 
Marcel Mallet-Prevost, 
William J. Avrtttis, 

Attorneys, 
National Labor Relations Board, 
March 1952. 



APPENDIX 

United States of America 

Before the National Labor Relations Board 

Cases Nos. l-CA-483, l-RC-969 

In the Matter of the M. H. Davidson Company and 
International Printing Pressmen and Assistants ' 
Union of North America, AFL 

DECISION AND ORDER 

On July 21, 1950, Trial Examiner Arthur Left 
issued his Intermediate Report in the above-entitled 
proceedings, finding that the Respondent had engaged 
in and was engaging in certain unfair labor practices 
and recommending that it be ordered to cease and 
desist therefrom and take certain affirmative action, 
as set forth in the copy of the Intermediate Report 
attached hereto. The Trial Examiner also found 
that the Respondent had not engaged in certain other 
unfair labor practices and recommended dismissal 
of the allegations of the complaint relating thereto. 1 
It was further recommended that the Board sustain 
the objections to the election which was held on 
July 22, 1949, set aside the election, and dismiss the 
petition in Case No. l-RC-969. Thereafter, the Re- 
spondent filed exceptions to the Intermediate Report, 
and a supporting brief. 

1 As no exception has been filed to this recommendation, we 
shall dismiss the allegations in the complaint relating to these 
unfair labor practices. 

94 N. L. R. B. No. 34. 

(10) 



11 

The Board 2 has reviewed the rulings of the Trial 
Examiner at the hearing and finds that no prejudicial 
error was committed. The rulings are hereby af- 
firmed. The Board has considered the Intermediate 
Report, the brief and exceptions, and the entire rec- 
ord in the case and hereby adopts the findings, con- 
clusions, and recommendations of the Trial Examiner, 3 
with the following amplification. 

The Trial Examiner found, and we agree, that on 
and after April 11, 1949, the Respondent refused to 
bargain collectively with the Union in violation of 
Section 8 (a) (1) and (5) of the Act, and that the 
subsequent election of July 22 did not represent the 
free and uncoerced choice of the Respondent's em- 
ployees and should be set aside. Shortly before 
April 11, the Union, having been designated by a 
majority of the employees in the appropriate unit 
described in the Intermediate Report, wrote to the 
Respondent, requesting a collective bargaining con- 
ference. Upon receiving this letter on April 11, the 
Respondent replied, in bad faith as its later conduct 
disclosed, that it doubted the Union's majority claim 
and declined to bargain collectively as requested. 

At the same time, the Respondent promptly em- 
barked on an extensive campaign of further unfair 
labor practices directed against its employees' right 
to bargain through the Union, as set forth in detail 
in the Intermediate Report. This campaign included 

2 Pursuant to the provisions of Section 3 (b) of the Act, the 
Board has delegated its powers in connection with this case to a 
three-member panel. 

3 The Intermediate Report contains an inadvertent inaccuracy 
in that it states that "* * * the Respondent, as a matter of 
standard procedure, did not, at least until July 12, 1945, delete 
the union affiliation question from its job application forms." The 
date should be July 12, 1949. The Intermediate Report is hereby 
corrected accordingly. 



12 

questioning employees concerning their union mem- 
bership and activity and their intended vote at the 
coming Board election, repeatedly threatening re- 
prisals for supporting the Union, promising benefits 
for rejecting the Union, and finally discharging two 
employees because of the Union. The election re- 
sulted in five votes for and six against the Union, with 
two ballots challenged. On November 14, the Re- 
gional Director issued a Report, stating that his 
investigation of objections to the election had dis- 
closed apparent unlawful interference by the Re- 
spondent, and recommending that the Board hold a 
hearing thereon. 4 

No exceptions were filed by Respondent to the Re- 
gional Director's report. — Accordingly, the Board on 
November 25, 1949, adopted the report and directed 
that a hearing be held on the objections. Thereafter, 
the General Counsel issued a complaint against the 
Respondent alleging a preelection violation of Sec- 
tion 8 (a) (5), and violations of other provisions 
of the Act. The General Counsel also issued a notice 
of consolidated hearing on the complaint and the 
objections. After a full hearing in which the Re- 
spondent participated, the Trial Examiner on July 21, 
1950, issued his Intermediate Report, as stated 
above, sustaining the 8 (a) (5) and many of the other 
allegations, and recommending that the election be 
set aside. 

Absent the representation proceeding, uniform 
Board policy, as detailed in the Intermediate Report, 
would be to reject the Respondent's expressed doubt 
of the Union's majority, because of the bad faith with 
which it was asserted, and to find a violation of the 
Act. Nor does the dissenting opinion dispute this 

4 The Regional Director further recommended that the chal- 
lenges await disposition of the objections. 



13 

wise policy. It appears to argue, however, that the 
Union waived its right to complain of the Respond- 
ent's unlawful conduct by proceeding to an election 
with knowledge of that conduct, that the election was 
valid because the Board would not thereafter permit 
the Union to withdraw its waiver; and that the Re- 
spondent's earlier unlawful refusal to bargain is 
therefore beyond the Board's reach. We think this 
a misapplication of the Board's " waiver" principle. 
Those cases in which the Board has applied that 
principle 5 have assumed the existence of a bona fide 
question of representation; no questions of the em- 
ployer's prior good faith in challenging the union's 
majority have been raised or litigated. Here, the 
basic issue is whether there was any genuine question 
of representation at any time. The Respondent's 
actions here demonstrate the bad faith of its original 
challenge of the Union's majority. We hold that, 
the Respondent's challenge of the Union's majority 
on April 11 having been in bad faith, no genuine 
question of representation was raised. We therefore 
regard the election as a nullity. 

Furthermore, to apply the waiver doctrine here, 
would require complete disregard of the Board's 
obligation to enforce the public policy against those 
refusals to bargain which are successful in inducing 
a union to file a petition — and in inducing the Board, 
in the representation proceeding, to find a question 
of representation — in the mistaken belief that a ques- 
tion of representation had in fact arisen. Here, the 
unfair labor practice which vitiated the election did 
not occur after a genuine question of representation 
had arisen, but was the very refusal to bargain which 
induced both the Union and the Board to conclude, 

5 Denton Sleeping Garment Mills, Inc., 93 N. L. R. B. No. 47, 
and cases cited therein. 



14 

albeit erroneously, that such a question had arisen, 
and which induced the filing of the petition. In such 
a situation the Board's statutory obligation to prevent 
refusals to bargain and to enforce the public policy 
enunciated by the Act 6 is paramount. The Board 
cannot permit a possible waiver by a private party 
to overrule this policy. 

Although the dissent alludes to the John Deere 
case, 7 we find it clearly distinguishable. Here no 
question concerning representation was pending at 
the time when the Respondent unlawfully refused to 
bargain collectively with the Union. On the contrary, 
it was only thereafter that the Respondent prevailed 
upon the Union to file its representation petition. 
We believe that in these circumstances the governing 
precedent is Joy Silk Mills, Inc., 85 K L. R. B. 1263, 
where Members Reynolds and Murdock joined in the 
8 (a) (5) finding which the Court of Appeals for the 
District of Columbia subsequently enforced. 8 



6 See Radio Corporation of America, 74 N. L. R. B. 1729, where 
the employer argued that the election should not be invalidated 
despite its own extensive unfair labor practices, because the Union 
knew of these practices before the election but nevertheless chose 
to proceed with the election. In rejecting this argument, the 
Board pointed out that the employer was trying to immunize "its 
own wrongful conduct" (emphasis in original). Mr. Reynolds' 
dissent appears to have hinged upon what he considered the 
Union's "abuses of the Board's process," a conclusion not sup- 
ported by the record in this case. 

Similarly, the Board has declined to give effect to other re- 
strictions upon collective bargaining when outweighed by the 
policy of protecting the statutory rights of employees. See 
Bethlehem Steel Co., 89 N. L. R. B. 132, and cases cited therein; 
J. J. Newberry Co., 88 N. L. R. B. 947. 

7 N. L. R. B. v. John Deere Plow Company, 27 L. R. R. M. 2348 
(C. A. 5, February 13, 1951), vacating 82 N. L. R. B. 69 with 
respect to the 8 (a) (5) finding. 

8 185 F. 2d 732. 



15 

[Provisions of Board's Order omitted.] 
Signed at Washington, D. C, May 2, 1951. 
[seal] Paul M. Herzog, 

Chairman, 

Paul L. Styles, 

Member, 
National Labor Relations Board. 

Abe Muedock, Member, dissenting in part: 

I disagree with the conclusion of the majority that 
the Respondent violated Section 8 (a) (5) of the Act 
in refusing to bargain with the Union as the exclusive 
representative of its employees on and after April 
11, 1949. 

On April 9, 1949, the Union wrote the Respondent, 
claiming to represent a majority of the employees in 
the appropriate unit and requesting a bargaining con- 
ference. Two days later the Respondent's president 
orally advised the Union that he did not believe the 
Union had a majority and would have nothing to do 
with it. On the same day the Union filed the petition 
in Case No. l-RC-969. On June 29, 1949, after an 
investigation and formal hearing, the Board issued 
its decision in that case in which it found that a ques- 
tion of representation existed and directed an election 
to resolve that question. Thereafter on July 22, 1949, 
an election was held in which five votes were cast for 
the Union, six against, and two votes were challenged. 
On July 28, 1949, the Union filed the charges in this 
proceeding and on the next day filed objections to the 
election based on the facts alleged in these charges. 
Meanwhile, at various times from March 1949 through 
at least July 12, 1949, the Respondent engaged in 
illegal acts of interference and discrimination. 

Thus it appears that, after a full and formal hear- 
ing in a representation proceeding, the Board found 



16 



a question of representation existed concerning the 
employees here involved and directed an election. The 
effect of a finding; of unlawful refusal to bargain in 
this proceeding is to penalize the Respondent for hav- 
ing previously arrived at the same conclusion. In the 
light of the existence of a representation question, as 
found by the Board, I am unable to accept, as do my 
colleagues, the Trial Examiner's implicitly contrary 
conclusion of law that "On April 11, 1949, Interna- 
tional Printing Pressmen and Assistants' Union of 
North America, AFL, was, and at all times since has 
been, the exclusive representative of all employees in 
the appropriate unit for the purpose of collective 
bargaining within the meaning of Section 9 (a) of the 
Act." The Union itself when it filed its representa- 
tion petition indicated its conviction that a question 
of representation existed which ought to be resolved 
by an election. As evidenced by its support of the 
petition through the Board's processes of investiga- 
tion, hearing, election and objections to the election, 
the Union apparently still retains that conviction. 

My view in this matter is supported by the recent 
decision in N. L. R. B. v. John Deere Plow Company, 
27 L. R. R. M. 2348 (C. A. 5, February 13, 1951). 
The court there, expressly adopting the dissenting 
opinion of Member Reynolds and myself, refused to 
enforce a Board order to bargain rendered in circum- 
stances similar in essential elements to those appear- 
ing here. In that case, Member Reynolds and I 
stated: "We have been under the impression that if 
any legal proposition could be said to represent well- 
established Board doctrine, it is the proposition that 
so long as there exists an unresolved question concern- 
ing representation there can be no exclusive bargain- 
ing representative, and hence no legal obligation to 
bargain." That principle is applicable here with even 



17 

stronger force. In the John Deere case the parties 
had agreed to a consent election. Here, the Board 
itself after formal hearing found the existence of a 
question of representation. 

Besides the basic legal inconsistency in the result 
reached by the majority there are other considerations 
which impel me to disagree with that result. After 
the Respondent's refusal to bargain, the Union had 
one of two courses of action open to it to establish 
officially its status as bargaining agent : it could have 
filed 8 (a) (5) charges or instituted a representation 
petition. It chose the latter course. I do not mean to 
imply that the Union should be considered to have 
bound itself irrevocably to follow the procedure it 
first initiated. Had it sought a withdrawal of its pe- 
tition at an appropriate time, the Board would in all 
likelihood have granted the request. But the Union 
did not do this. Instead it supported its petition 
through a hearing and an election. During this pe- 
riod, up to about 2 weeks before the election, the Re- 
spondent was engaging in the acts complained of by 
the Union in the complaint proceeding. The Union 
certainly knew of the Respondent's refusal to bargain 
and also must have known of the overt acts of inter- 
ference and discrimination. Yet at no time before the 
election did the Union protest the activity of the Re- 
spondent nor file charges based on that activity. 
Rather, it chose to await passively the results of the 
election. In similar circumstances the Board has held 
that the Union could not thereafter raise as objections 
to the election the acts of the Employer of which it 
had knowledge. 10 That principle is controlling here 
with the result that the election in Case No. l-RC-969 
must be considered to be a valid and effective elec- 



10 Denton Sleeping Garment Mills, Inc., 93 N. L. R. B. No. 47, 
and cases cited therein in footnote 3. 



18 

tion. Having chosen to participate in such election as 
a means to establish its bargaining status, the Union 
should not thereafter be allowed to recant and seek to 
pursue a remedy it previously chose to ignore. Nor 
should the Board disavow a valid election conducted 
under its auspices and proceed to order the Respond- 
ent to bargain with the Union regardless of the out- 
come of that election. 

The Board has long recognized that good adminis- 
trative practice decrees that it should not be profligate 
in the exercise of its functions and therefore it has 
adopted various safeguards to conserve its energies. 
Examples of these are the requirement of substantial 
showing of interest to support a petition and the re- 
fusal of the Board to proceed in cases where jurisdic- 
tion is present, but to assert it would not effectuate 
the policies of the Act. The requirement of a waiver 
before proceeding in a representation matter when a 
related charge has been filed is also a device of this 
sort. Similar to this is the firm practice of the Board 
to suspend the processing of a representation case 
when a related charge of refusal to bargain is filed. 
Waivers are not accepted in such cases as they are 
in situations where other unfair labor practices are 
concerned. 11 This practice is a recognition of the fact 
that inasmuch as a representation matter and a re- 
fusal to bargain proceeding are directed at the same 
end, it would not be consonant with good administra- 
tion to allow both to be prosecuted at the same time. 
By waiting until after the election before filing its 
charges, the Union avoided this sound policy and 
caused the Board to engage in fruitless and expensive 
procedures. It is unimportant whether or not the 

11 Inasmuch as the majority does not deal with this question, it is 
not clear whether the Board is abandoning this practice or 
thinks that this case is distinguishable on the facts. 



19 

Union deliberately timed its filing of charges to avoid 
having action suspended on its representation peti- 
tion. What is important is that the effectuation of an 
established Board policy should not be determined by 
the desire of a charging party as to when it will file 
its charge. The decision of the majority gives formal 
sanction to such a practice and can lead only to a 
diffusion and waste of Board proc . 

For the foregoing reasons. I would dismiss that por- 
tion of the complaint which alleges an illegal refusal 
to bargain. In Case fro. l-RC-969. I would not 
miss the petition, but would process the challenged 
ballots in the usual manner. 

Signed at Washington. D. C, May 2. 1951. 

Abe Murdock. 

Member. 



.< s :-: .-: = •>-:■>- - - •>- M -• ■ :■. ,:: 



No. 13141 



Mnittb States 

Court of Appeals 

Jfor tfte jBttntti Circuit. 



FIBREBOARD PRODUCTS, INC., a Corporation, 

Appellant, 

vs. 

W. H. TOWNSEND, 

Appellee. 



®ran£crtpt of Hecorb 



Appeal from the United States District Court, 

Northern District of California, 

Southern Division 

FILED 

JAN - 1 1952 
PAUL P. O'BRIEN 

Phillips & Van Orden Co., 870 Brannan Street, San Francisco, Calif. CLERK 



No. 13141 



Umteb States 

Court of Appeals 

Jfor tfje jSintf) Circuit. 



FIBREBOARD PRODUCTS, INC., a Corporation, 

Appellant, 
vs. 

W. H. TOWNSEND, 

Appellee. 



transcript of Jkcorb 



Appeal from the United States District Court, 

Northern District of California, 

Southern Division 



Phillips & Van Orden Co., 870 Brannan Street, San Francisco, Calif 



INDEX 

[Clerk's Note: When deemed likely to be of an important nature, 
errors or doubtful matters appearing in the original certified record 
are printed literally in italic; and, likewise, cancelled matter appear- 
ing in the original certified record is printed and cancelled herein 
accordingly. When possible, an omission from the text is indicated by 
printing in italic the two words between which the omission seems 
to occur.] 

PAGE 

Answers to Interrogatives 15 

Ex. A — Written Statement Purporting to 
Authorize Plaintiff to Drive Auto- 
mobile 17 

Appeal : 

Certificate of Clerk to Transcript of Rec- 
ord on 229 

Notice of 36 

Statement of Points on Which Appellant 
Intends to Rely on 231 

Certificate of Clerk to Transcript of Record on 
Appeal 229 

Complaint 2 

Exhibits, Defendant's: 

A— Letter Dated September 7, 1948 90 

B — Fibreboard Products Inc. Application 

Blank 93 

E— Letter Dated March 11, 1949 217 

F— Letter Dated May 23, 1949 219 



ii Fibreboard Products, Inc., etc. 

INDEX PAGE 

Exhibits, Plaintiff's: 

No. 1— Letter Dated August 26, 1948 39 

2— Letter Dated September 1, 1948. . . 41 

3— Letter Dated October 19, 1948 45 

4— Letter Dated September 2, 1949. . . 57 

5— Letter Dated February 1, 1944. ... 72 

6— Letter Dated November 2, 1949. ... 77 

7— Letter Dated November 3, 1949. . . 79 

Finding of Fact and Conclusions of Law. 31 

First Amended Answer 18 

First Amended Complaint 7 

Interrogatories Propounded by Defendant to 

Plaintiff 12 

Judgment 34 

Names and Addresses of Attorneys 1 

Notice of Appeal 36 

Order for Judgment 29 

Reporter's Transcript 37 

Witnesses, Defendant's: 

Lindley, Thomas M. 

—direct 112 

— cross 131 



vs. W. H. Townsend iii 

INDEX PAGE 

Witnesses, Defendant's — (Continued) : 

McCuish, Gordon V. 

—direct 167 

— cross 175 

Stitt, Claude M. 

— direct 178 

— cross 189 

— redirect 211 

— recross 214 

Witness, Plaintiff's: 

Townsend, Willie Henry 

—direct 38, 225 

—cross 86, 228 

— redirect 109 

— recross Ill 

Statement of Points on Which Appellant In- 
tends to Rely of Appeal 231 

Stipulation Re Deposition of Utley, E. R 21 

Deposition of Utley, E. R 22 



NAMES AND ADDEESSES OP ATTORNEYS 

SAMUEL L. HOLMES, 

BROBECK, PHLEGER & HARRISON, 

111 Sutter Street, 

San Prancisco, Calif., 

Attorneys for Appellant. 

C. K. CURTRIGHT, 

506 Bank of America Building, 
Sacramento, Calif. 

CHARLES R. GARRY, 

68 Post Street, 

San Prancisco, Calif., 

Attorneys for Appellee. 



3 

In the Superior Court of the State of California, 
in and for the City and County of San Fran- 
cisco 

No. 393360 

W. H. TOWNSEND, 

Plaintiff, 
vs. 

FIBREBOARD PRODUCTS, INC., FIRST DOE, 
SECOND DOE and DOE CORPORATION, 

Defendants. 

COMPLAINT 

Comes now the plaintiff above named and com- 
plains of the above-named defendant and for cause 
of action alleges: 

I. 

That the true names of the defendants, First 
Doe, Second Doe and Doe Corporation are unknown 
to Plaintiff, and said defendants are therefore sued 
herein by said names which are fictitious and plain- 
tiff hereby prays leave to charge said defendants 
herein by their true names when the same shall be 
ascertained, and to charge said defendants by suit- 
able allegations herein and amendments hereto. 

H. 

That the defendant, Fibreboard Products, Inc., 
is a corporation organized and existing under and by 
virtue of the laws of the state of Delaware and 
is duly licensed and authorized to do business in 
the State of California, and is engaged in said 



4 Fibreboard Products, Inc., etc. 

business in said state and has its principal place 
of business in the City and County of San Francisco 
in said State of California. 

III. 

That on or about the 18th day of October, 1948, 
at the City of Antioch, in the County of Contra 
Costa, State of California, the plaintiff and de- 
fendant mutually agreed that the plaintiff should 
serve the defendant as a Recovery Operator in the 
Recovery Department of the San Joaquin Division 
of said Fibreboard Products, Inc., situated at An- 
tioch, in said last named County and State, and 
that the defendants should employ this plaintiff as 
such Recovery Operator for an indefinite time, 
commencing upon the completion of the erection and 
construction of said Recovery Department of said 
San Joaquin Division of said Fibreboard Products, 
Inc., and that defendants would pay plaintiff for 
such services at the rate of $1,725 per hour from 
and after the commencement of the term of said 
employment. 

IV. 

That the Recovery Department of said San 
Joaquin Division of said Fibreboard Products, Inc., 
was completed and ready for operation on or about 
the 15th day of October, ■ 1949 ; that on the 2nd day 
of November, 1949, at Antioch, County of Contra 
Costa, State of California, the plaintiff offered to 
enter upon the services of defendants and has ever 
since been ready and willing to do so. 



vs. W. £T. Townsend 5 

V. 

That in pursuance of said agreement of employ- 
ment and in pursuance of the promise and agree- 
ments of defendants to pay to plaintiff the cost 
of his transportation from the City of Tuscaloosa, 
Alabama, where he resided on said 18th day of 
October, 1948, to the City of Antioch, County of 
Contra Costa, State of California, plaintiff did re- 
move from the said City of Tuscaloosa, to the said 
City of Antioch, at his cost and expense in the 
sum of $500; and that, in pursuance of said agree- 
ment of employment and the said removal of plain- 
tiff and his said family from the said City of 
Tuscaloosa to the said City of Antioch, for the 
purpose of rendering himself available for the per 
formance of said contract on his part, plaintiff was 
obliged to and did sell and dispose of his household 
furnishings and effects in the City of Tuscaloosa 
and to purchase and acquire other household fur- 
niture and effects in the City of Antioch, to his 
cost, damage and expense in the sum of $2,000; 
and further, by reason of the necessity for the 
removal of plaintiff from the said City of Tusca- 
loosa to the said City of Antioch for the purpose 
of complying with the said agreement of employ- 
ment, plaintiff was obliged to, and did, vacate the 
housing accommodations occupied by him in the City 
of Tuscaloosa, at the monthly rental of $32.50 and 
to acquire and occupy a resident housing accommo- 
dation in the said City of Antioch, at the monthly 
rental of $80 to the cost, damage and expense to 
plaintiff in the sum of $665 to the date of the com- 



6 Fibreboard Products, Inc., etc. 

mencement of this action, and at the continuing 
loss, damage and expense to plaintiff at the rate 
of $47.50 per month from and after the commence- 
ment of this action for a period of time, the dura- 
tion of which plaintiff cannot now definitely state, 
except it will be for a considerable period. 

VI. 

That the defendants refused to permit the plain- 
tiff to enter upon such service as such Recovery 
Operator or to pay him for his services to the 
damage of the plaintiff in the sum of One Hundred 
Thousand ($100,000.00) Dollars. 

Wherefore, plaintiff prays judgment against the 
plaintiff in the sum of One Hundred Three Thou- 
sand Six Hundred Fifteen ($103,615.00) Dollars; 
damages accrued to the date of the commencement 
of this action; damages at the rate of Forty-seven 
and 57/100 ($47.57) Dollars for such period of time 
as the Court shall adjudged it to have been reason- 
able for plaintiff to have occupied the housing ac- 
commodations in this complaint referred to ; for his 
costs of suit herein incurred ; and for such other and 
further relief as shall to the Court be meet and 
proper in the premises. 

C. K. CURTRIGHT, 

Attorney for Plaintiff. 

Duly verified. 

[Endorsed] : Filed January 26, 1950. 



vs. W. H. Townsend 7 

In the United States District Court for the Northern 
District of California, Southern Division 

No. 29449 

W. H. TOWNSEND, 

Plaintiff, 

vs. 

FIBREBOAED PRODUCTS, INC., FIRST DOE, 
SECOND DOE, and DOE CORPORATION, 

Defendants. 

FIRST AMENDED COMPLAINT 

Comes now the plaintiff above named and files, 
as of course, this, his first amended complaint, com- 
plains of defendants above named, and for cause of 
action alleges: 

I. 

That the true names of the defendants, First Doe, 
Second Doe, and Doe Corporation, are unknown 
to plaintiff, and said defendants are therefore sued 
herein by said names, which are fictitious, and plain- 
tiff hereby prays leave to charge said defendants 
herein by their true names when the same shall be 
ascertained, and to charge said defendants by suit- 
able allegations herein and amendments hereto. 

II. 

That the defendant, Fibreboard Products, Inc., 

is a corporation organized and existing under and 

by virtue of the laws of the State of Delaware 

and is dulv licensed and authorized to do business 



H Fibreboard Products, Inc., etc. 

in the State of California, and is engaged in said 
business in said State and has its principal place 
of business in the City and County of San Francisco, 
in said State of California. 

III. 

That on or about the 18th day of October, 1948, 
at the City of Antioch, County of Contra Costa, 
State of California, the plaintiff and defendants 
mutually agreed, orally and in writing, that the 
plaintiff should serve the defendants as a recovery 
operator in the Recovery Department in the San 
Joaquin Division of said Fibreboard Products, Inc., 
situated at Antioch in the said last-named County 
and State, and that the defendants should employ 
the plaintiff as such recovery operator for so long 
as plaintiff should desire to be so employed and 
for so long as plaintiff's work should be satisfactory, 
said employment to commence upon the completion 
of the erection and construction of said Recovery 
Department of said San Joaquin Division of said 
Fibreboard Products, Inc., and the defendants 
would pay plaintiff for such services at the start- 
ing rate of $1,725 per hour from and after the 
commencement of the term of said employment and 
that said employment would be continuous and 
permanent, with chances and opportunity afforded 
to plaintiff for increase in the rate of his hourly 
compensation, and opportunity would be afforded 
to plaintiff for advancement to other and higher 
grades of employment with said defendant corpora- 
tion; that at said time and place, and as part of 



vs. W. H. Townsend 9 

the contract hereinbefore set forth, it was further 
mutually agreed by and between plaintiff and de- 
fendants, orally and in writing, that it would be 
necessary for plaintiff to remove from the City of 
Tuscaloosa in the State of Alabama, where he then 
resided, to the City of Antioch, in the County of 
Contra Costa, State of California, and that in con- 
sideration of the acceptance of said employment by 
the plaintiff and the removal of plaintiff from said 
City of Tuscaloosa to said City of Antioch, defend- 
ants would pay to plaintiff upon the commencement 
of the term of said employment, at the City of 
Antioch, County of Contra Costa, State of Cali- 
fornia, the reasonable cost and expense of plaintiff 
in the transportation of himself and his family 
from said City of Tuscaloosa to said City of An- 
tioch, as aforesaid. 

IV. 

That the Recovery Department of said San 
Joaquin Division of said Fibreboard Products, Inc., 
was completed and ready for operation on or about 
the 15th day of October, 1949; that on the 2nd day 
of November, 1949, at Antioch, County of Contra 
Costa, State of California, the plaintiff offered to 
enter upon the service of defendants, and has ever 
since been ready, willing, and able to do so. 

V. 

That in pursuance of said agreement of employ- 
ment and in pursuance of the promise and agree- 
ment of defendants to pay to plaintiff the cost of 



10 Fibreboard Products, Inc., etc. 

transportation for him and his family from the 
City of Tuscaloosa, Alabama, where he resided on 
said 18th day of October, 1948, to the City of An- 
tioch, County of Contra Costa, State of California, 
plaintiff, on or about the 15th day of November, 
1948, did remove from the said City of Tuscaloosa, 
to said City of Antioch, at his cost and expense in 
the sum of $500; and that, in pursuance of said 
agreement of employment and the said removal 
of plaintiff and his said family from the said City 
of Tuscaloosa to the said City of Antioch, for the 
purpose of rendering himself available for the per- 
formance of said contract on his part, plaintiff was 
obliged to and did sell and dispose of his house- 
hold furnishings and effects in the City of Tusca- 
loosa, and to purchase and acquire other household 
furniture and effects in the City of Antioch, to his 
cost, damage and expense in the sum of $2,000; and 
further, by reason of the necessity for the removal 
of plaintiff from the said City of Tuscaloosa to 
the said City of Antioch for the purpose of comply- 
ing with the said agreement of employment, plain- 
tiff was obliged to, and did, vacate the housing 
accommodations occupied by him in the City of 
Tuscaloosa, at the monthly rental of $32.50 and to 
acquire and occupy a resident housing accommoda- 
tion in the said City of Antioch, at the monthly 
rental of $80 to the cost, damage and expense to 
plaintiff in the sum of $665 to the date of the 
commencement of this action, and at the continuing 
loss, damage and expense to plaintiff at the rate 
of $47.50 per month from and after the commence- 



vs. W. H. Townsend 11 

ment of this action for a period of time, the dura- 
tion of which plaintiff cannot now definitely state, 
except it will be for a considerable period. 

VI. 

That the position of recovery operator is a highly 
skilled and specialized job requiring for its efficient 
performance years of experience and an extensive 
and thorough training; that said position is the 
highest grade of emplyee in the operation of a kraft 
paper mill ; that plaintiff is fully and duly qualified 
by training, education, and experience to perform 
efficiently all and every one of the duties of a re- 
covery operator, and that plaintiff is, and at all 
times herein mentioned has been, ready, able, and 
willing to do and perform all of the duties of said 
position. 

VII. 

That the defendants refused to permit the plain- 
tiff to enter upon such service as such recovery 
operator or to pay him for his services, to the 
damage of the plaintiff in the sum of One Hundred 
Thousand Dollars ($100,000.00). 

Wherefore, plaintiff prays judgment against the 
defendants in the sum of One Hundred Three 
Thousand Six Hundred Fifty Dollars ($103,615.00) ; 
damages accrued to the date of the commencement 
of this action; damages at the rate of Forty-seven 
and 50/100 Dollars ($47.50) for such period of 
time as the Court shall adjudge it to have been 
reasonable for plaintiff to have occupied the hous- 



12 Fibreboard Products, Inc., etc. 

ing accommodations in this complaint referred to; 
for his costs of suit herein incurred; and for such 
other and further relief as shall to the Court be 
meet and proper in the premises. 

C. K. CURTRIGHT, 

CHARLES R. GARRY, 

/s/ C. K. CURTRIGHT, 

Attorneys for Plaintiff. 

Duly verified. 

Receipt of Copy acknowledged. 

[Endorsed] : Piled February 7, 1950. 



[Title of District Court and Cause.] 

INTERROGATORIES PROPOUNDED BY DE- 
FENDANT FIBREBOARD PRODUCTS, 
INC., TO PLAINTIFF 

Pursuant to Rule 33, Federal Rules of Civil Pro- 
cedure, defendant Fibreboard Products, Inc., hereby 
propounds the following interrogatories to be 
answered by plaintiff separately and fully in writing 
under oath: 



2. State the name and address of the owner of 
that certain 1942 Pontiac automobile which plaintiff 
drove from Birmingham, Alabama, to Antioch, Cali- 
fornia, in November, 1948. 

3. State the name and address of the individual 



vs. W. H. Townsend 13 

or individuals who granted plaintiff permission or 
authority to drive the said automobile from Tusca- 
loosa, Alabama, to Antioch, California. 

4. Attach a copy of the letter or document or 
written statement purporting to authorize plaintiff 
to drive the said automobile from Tuscaloosa, Ala- 
bama, to Antioch, California. 

5. State the terms of the agreement or arrange- 
ment other than the letter, document or written 
statement referred to in Interrogatory 4 pursuant 
to which plaintiff obtained the said automobile 
and drove it from Tuscaloosa, Alabama, to Antioch, 
California, and the date upon which such agreement 
or arrangements were made. 

6. State the name and address of the business 
establishment from whose custody the plaintiff ob- 
tained the Pontiac sedan hereinabove referred to 
and the date upon which plaintiff obtained the said 

automobile. 

* * * 

27. State the exact dates of the period during 
which plaintiff was employed by Otis Elevator Com- 
pany in the State of Alabama in the year 1948. 

28. State the name and address of the person 
who hired plaintiff and of each supervisor under 
whom plaintiff worked during the employment re- 
ferred to in Interrogatory 27. 

29. State the original terms of plaintiff's em- 
ployment agreement with Otis Elevator Company 
referred to in Interrogatory 27, including: 



14 Fibreboard Products, Inc., etc. 

(a) Duration; 

(b) Wage rate; 

(c) Classification; 

(d) Type of work; 

(e) Any other term or conditions. 

30. State any changes in the employment agree- 
ment referred to in Interrogatory 29 made in the 
course of the employment. 

• * » 

34. State the dates of the periods during which 
plaintiff has been employed by each of the persons 
or business organizations given in answer to In- 
terrogatory 33. 

35. State the gross amounts received by or owing 
to plaintiff or for which credit has been given plain- 
tiff in each employment referred to in Interroga- 
tories 33 and 34. 

Dated March 31, 1950. 

BROBECK, PHLEGER & 
HARRISON, 
Attorneys for Defendant 
Fibreboard Products, Inc. 

Receipt of Copy acknowledged. 
[Endorsed] : Filed March 31, 1950. 



vs. W. H. Townsend 15 

[Title of District Court and Cause.] 

ANSWERS TO INTERROGATORIES BY W. H. 
TOWNSEND, PLAINTIFF, PROPOUNDED 
BY DEFENDANT, FIBREBOARD PROD- 
UCTS, INC. 

United States of America, 

State of California, 

City and County of San Francisco — ss. 

W. H. Townsend, being first duly sworn, deposes 
and says: 

That he is the plaintiff in the above-entitled ac- 
tion and that he answers the interrogatories pro- 
pounded to him by defendant Fibreboard Products, 
Inc., pursuant to Rule 33, Federal Rules of Civil 
Procedure, as follows: 

* * * 

2. 1942 Pontiac club coupe, Motor No. P 8 KA, 
Lie. No. 512815, Maryland. Owned by Lt. B. E. 
McCharen, Jr., U. S. Army, Yokohama, Japan. 

3. Mrs. Montez S. McCharen, whose address at 
that time was 304 Westover Drive, Birmingham, 
Alabama. 

4. Attached hereto as Exhibit A. 

5. It was a verbal agreement that I was to pay 
for gas and oil and grease jobs on car; any major 
repairs by Mrs. McCharen. The first I knew of 
this Pontiac car or of Mrs. Montez S. McCharen 
was when I read an ad in the classified section of 
the Sunday edition of the Birmingham News and 



16 Fibreboard Products, Inc., etc. 

Age Herald on November 6, 1948. Telephoned 304 
Westover Drive and spoke with Mrs. McCharen 's 
mother, who told me that her daughter was asleep. 
I told her I would have my brother drive me to 
Birmingham in his car for a meeting regarding 
the driving of this car to Fort Mason, San Fran- 
cisco. Met Mrs. Montez S. McCharen at 1:00 p.m. 
on Sunday, November 6, 1948, and an agreement 
was made. Returned to Birmingham on Monday, 
November 7, but car was in the shop and was told 
by Mrs. McCharen to return on Tuesday, Novem- 
ber 8. On that date, she gave me written authority 
to get the car. 

6. Shaver Pontiac Company Garage in Birming- 
ham, Alabama, on Tuesday, November 9, 1948. 
Drove car to Tuscaloosa, Alabama, and left for 
Antioch on Wednesday, November 10, 1948. 

* * * 

27. Do not remember the date I was employed 
by Otis Elevator Company but I last worked up to 
November 7, 1948, and left the job at noon that day. 

28. Mr. Ussery. I presume his address is c/o 
Otis Elevator Company, Atlanta, Georgia, but am 
not sure. 

29. First hired at $1.43 per hour and on Sep- 
tember 12, 1948, increased to $1.58 per hour. I was 
classified as an elevator erector's helper. Our job 
was to install Otis elevators. No limitation as to 
period of duration. 



vs. W. H. Townsend 17 

30. Only change was the 15c per hour increase 
in pay. My duties were the same. 

* * * 

34. Employed by the Southern Pacific Railroad 
Company from September 13, 1949, until February 
7, 1950. 

35. Total wages from Southern Pacific was ap- 
proximately $1,100, and, as I say, I may have made 
in the past seven months $35 with Mr. Higgins. 

/s/ W. H. TOWNSEND. 

Subscribed and sworn to before me this 2nd day 
of June, 1950. 

/s/ RAYMOND H. CRONIN, 
Notary Public in and for the City and County of 
San Francisco, State of California. 

EXHIBIT A 

(Copy) 

"To Whom It May Concern 

"I, Montez S. McCharen, wife of B. E. Mc- 
Charen, Jr.,, 1st Lt., ASN 0-1327557, do hereby 
grant authority to Willie Hugh Townsend to trans- 
port one Pontiac Automobile, Club Coupe, Model 
1942, motor number P8KA 3693 license number 
512815 Maryland from Birmingham, Alabama, to 
San Francisco, California, at which place the auto- 
mobile will be turned in to the Transportation Offi- 
cer, Fort Mason, California, for the purpose of 



1 8 Fibreboard Products, Inc., etc. 

being transshipped to B. E. McCharen, Jr., 1st 
Lt., U. S. Army, Yokohama, Japan. 

"/s/ MONTEZ S. McCHAREN 
"304 Westover Drive 
"B'ham 9, Alabama 

"(Priority 370 November. )" 

Subscribed and sworn to before me this 8th day 
of November, 1948, Notary public, Jefferson County, 
Alabama. 

[Seal] /s/ JACK VERNON DAVIDSON, 

Notary Public. 

My Commission Expires Oct. 20, 1952. 

Receipt of Copy acknowledged. 
[Endorsed] : Filed June 6, 1950. 



[Title of District Court and Cause.] 

FIRST AMENDED ANSWER 

Comes now defendant Fibreboard Products, Inc., 
one of the defendants in the above-entitled action, 
and in answer to the complaint on file herein ad- 
mits, denies and alleges as follows : 

I. 

Answering paragraph III of the First Amended 
Complaint, defendant denies generally and specifi- 
cally each and every, all and singular, the allega- 
tions contained therein. Defendant alleges that on 



vs. W. H. Townsend 19 

or about August 31, 1949, it offered employment 
to the plaintiff at its plant known as the San 
Joaquin Division, at Antioch, County of Contra 
Costa, State of California, and that plaintiff re- 
fused said offer of employment. Defendant further 
alleges that it employed plaintiff on a temporary 
basis from on or about November 24, 1948, until 
on or about September 3, 1949. 

II. 

Answering paragraph IV of the complaint, de- 
fendant alleges that the so-called recovery depart- 
ment of its plant known as the San Joaquin Divi- 
sion at Antioch, County of Contra Costa, State of 
California, was completed and ready for operation 
on or about October 15, 1949; defendant denies 
generally and specifically each and every, all and 
singular, the allegations of said paragraph IV not 
herein specifically admitted. 

III. 
Answering paragraphs V and VI of the com- 
plaint, defendant denies generally and specifically 
each and every, all and singular, the allegations 
contained in said paragraphs. 

IV. 

Answering paragraph VII of the complaint, de- 
fendant denies generally and specifically each and 
every, all and singular, the allegations contained 
therein and further denies that plaintiff has been 
damaged in the sum of One Hundred Thousand 
Dollars ($100,000.00) or in any sum or at all, and 



20 Fibreboard Products, Inc., etc. 

defendant alleges that it has paid plaintiff in full 
for any and all services rendered to defendant or 
requested to be rendered to defendant. 

As and for a further answer to the First 
Amended Complaint on file herein, and by way of 
affirmative defense, defendant Fibreboard Products, 
Inc., alleges as follows : 

1. The oral agreement or agreements alleged 
and referred to in paragraphs III, IV, V, VI and 
VII of the complaint are invalid and unenforceable, 
in that said contracts, either collectively or individ- 
ually, are not in writing and subscribed by the 
party to be charged or by his agent. 

Wherefore, defendant prays that it be hence dis- 
missed with its costs of suit herein incurred, and 
for such other relief as to the Court may seem 
meet and proper in the premises. 

Dated September 22, 1950. 

BEOBECK, PHLEGER & 
HARRISON, 

Attorneys for Defendant, 
Fibreboard Products, Inc. 

Duly verified. 

Receipt of Copy acknowledged. 

[Endorsed] : Filed September 25, 1950. 



vs. W. H. Townsend 21 

[Title of District Court and Cause.] 

STIPULATION 

It Is Hereby Stipulated by and between counsel 
for plaintiff and counsel for Fibreboard Products, 
Inc., one of the defendants, that the testimony of 
Mr. E. R. Utley, a witness called by said defendant 
in the above-entitled matter, whose business address 
is c/o Otis Elevator Company, Durham, North 
Carolina, may be taken pursuant to this Stipula- 
tion, and by means of the written interrogatories 
attached hereto, that Mr. Utley may answer the 
said interrogatories in writing and subscribe to 
same before a notary public or other officer com- 
missioned to administer oaths, and that the inter- 
rogatories and the written answers thereto may be 
used in the trial of the above-entitled matter to the 
same extent and with the same force and effect as 
though the witness appeared in person and testified 
in said trial. 

Dated September 13, 1950. 

/s/ C. K. CURTRIGHT, 

/s CHARLES R. GARRY, 

Attorneys for Plaintiff. 

BROBECK, PHLEGER & 
HARRISON, 

Attorneys for Defendant, 
Fibreboard Products, Inc. 



22 Fibreboard Products, Inc., etc. 

[Title of District Court and Cause.] 

DEPOSITION OF E. R. UTLEY 

I, Leslie Ford, a Notary Public in and for the 
County of Durham, State of North Carolina, do 
hereby certify that, within the jurisdiction of my 
authority, on September 15, 1950, at 4:00 p.m., 
pursuant to Stipulation attached hereto, which was 
entered into in the above-numbered and styled 
cause, dated September 13, 1950, personally ap- 
peared E. R. Utley, a witness for the defendant 
named in said stipulation ; and the said E. R. Utley 
being by me first duly cautioned and sworn to tes- 
tify to the truth, the whole truth, and nothing but 
the truth concerning the matter in controversy, did 
depose and say, in answer to the direct interrogato- 
ries propounded in this case, read to him by me : 

Questions Upon Direct Examination of E. R. Utley 
Upon Written Deposition. 

1. State your name. 

2. State your address. 

3. By whom are you employed ? 

4. In what capacity are you employed f 

5. By whom were you employed from the middle 
of August, 1948, until the middle of November of 
that year % 

6. In what capacity were you employed during 
the period referred to in Interrogatory No. 5 ? 



vs. W. H. Townsend 23 

7. What were your duties during the employ- 
ment referred to in Interrogatory No. 5 ? 

8. Where did you perform your duties during 
the period referred to? 

9. Did you have authority to employ an elevator 
mechanic's helper or an elevator erector's helper? 

10. Did you employ Mr. Willie Hugh Townsend 
during the month of August, 1948? 

11. If the answer to Interrogatory 10 is in the 
affirmative, please state the date when you em- 
ployed Mr. Townsend. 

12. State whether the contract of employment 
with Mr. Townsend was written or oral. 

13. If the contract of employment was written, 
please attach it to your answers to these inter- 
rogatories, or, if the original is not available, ex- 
plain where it is and attach a copy. 

14. If the contract of employment was oral, 
please state its terms and conditions, including 
wages, hours, place or places of employment, job 
title or classification, duration of employment and 
any other provisions. 

15. Is there any custom in the elevator construc- 
tion business with respect to hiring helpers ? 

16. If the answer to Interrogatory 15 is in the 
affirmative, please state what the custom is. 

17. State whether Mr. Townsend was employed 
on construction work. 



24 Fibreboard Products, Inc., etc. 

18. Please state whether Mr. Townsend was em- 
ployed on a temporary or permanent basis. 

19. If there were any changes in the terms or 
conditions of Mr. Townsend 's employment between 
the date of employment in August and the termina- 
tion of his employment, please state the changes. 

20. State the location of the job or jobs on which 
Mr. Townsend was employed. 

21. State the date of completion of the job or 
jobs. 

22. State the date upon which Mr. Townsend 's 
employment was terminated. 

Questions Upon Cross-Examination of E. R. Utley 
Upon Written Deposition 

1. What is your present capacity in your em- 
ployment and what duties do they entail? 

2. What sum per hour did Mr. Townsend earn 
at the time he terminated his employment? 

3. What was Mr. Townsend 's total earning for 
the five months immediately preceding the termina- 
tion of his employment? 

4. Did Mr. Townsend resign his position or was 
he discharged? 

5. Could Mr. Townsend have continued his em- 
ployment with you, and if so, for what period of 
time? 



vs. W. H. Townsend 25 



6. Please state your opinion of Mr. Townsend 


as an employee as to the following: 


a. 


Conscientiousness. 


b. 


Ability to take orders and directions. 


c. 


Ability to get along with fellow workers. 


d. 


Reliability. 


e. 


Honesty and trustworthiness. 


f. 


Leadership. 


g- 


Initiative. 


h. 


Sobriety. 


i. 


Loyalty. 


J. 


Efficiency. 



Answer to Direct Interrogatory No. 1: E. R. 
Utley. 

Answer to Direct Interrogatory No. 2: 1116 
Ninth Street, Durham, North Carolina. 

Answer to Direct Interrogatory No. 3 : I am em- 
ployed by Otis Elevator Company. 

Answer to Direct Interrogatory No. 4: Local 
Representative in Durham. 

Answer to Direct Interrogatory No. 5 : By Otis 
Elevator Company. 

Answer to Direct Interrogatory No. 6: I was 
Elevator Erector. 

Answer to Direct Interrogatory No. 7: Servic- 
ing and installing elevators. 

Answer to Direct Interrogatory No. 8: I was 
working out of our Zone Office, which is in At- 



26 Fibreboard Products, Inc., etc. 

lanta, and among other places, in Tuscaloosa, Ala- 
bama. 

Answer to Direct Interrogatory No. 9 : An eleva- 
tor erector and elevator mechanic is the same. Sure. 

Answer to Direct Interrogatory No. 10 : Yes. 

Answer to Direct Interrogatory No. 11: About 
August 29, 1948. 

Answer to Direct Interrogatory No. 12: Part 
written and part oral. 

Answer to Direct Interrogatory No. 13: I have 
no copy. The original is kept with the pay roll 
records in the Atlanta Office. 

Answer to Direct Interrogatory No. 14: We 
were to pay him about $1.57 per hour eight hours 
per day or forty hours per week to work in Tusca- 
loosa, Alabama, as elevator erector's helper. Noth- 
ing was said about duration of his employment. 

Answer to Direct Interrogatory No. 15 : Yes. 

Answer to Direct Interrogatory No. 16: When 
an elevator constructor does not have regular ex- 
perienced assistant elevator constructors, he hires 
the best assistants he can find for varying periods 
of time. 

Answer to Direct Interrogatory No. 17 : Yes, he 
was. 

Answer to Direct Interrogatory No. 18: On a 
temporary basis. 



vs. W. H. Townsend 27 

Answer to Direct Interrogatory No. 19: There 
were no changes. 

Answer to Direct Interrogatory No. 20: Bryce 
Hospital, University of Alabama, and Gulf States 
Paper Corporation, all in Tuscaloosa, Alabama. 

Answer to Direct Interrogatory No. 21 : All the 
jobs in Tuscaloosa were completed around Novem- 
ber 15, 1948. 

Answer to Direct Interrogatory No. 22: About 
a week and a half before the jobs were completed. 

And said witness did depose and say, in answer 
to the cross-interrogatories propounded in this case, 
read to him by me : 

Answer to Cross-Interrogatory No. 1: Local 
Representative in Durham, North Carolina, of Otis 
Elevator Company. Service, sales, and general rep- 
resentation. 

Answer to Cross-Interrogatory No. 2: About 
$1.57 per hour. 

Answer to Cross-Interrogatory No. 3: I do not 
have that information. 

Answer to Cross-Interrogatory No. 4: He re- 
signed. 

Answer to Cross-Interrogatory No. 5 : He could 
have continued his employment with us but for 
what period of time I can't say as he resigned be- 
fore the Tuscaloosa jobs were finished. 



28 Fibreboard Products, Inc., etc. 

Answer to Cross-Interrogatory No. 6 : My opin- 
ion of Mr. Townsend as an employee was: 

a. He really was conscientious. 

b. His ability to take orders was good. 

c. His ability to get along with fellow work- 
ers was good. 

d. Reliability — good. 

e. As far as I know — good. 

f. Leadership — fair. 

g. Initiative — fair, 
h. Fair. 

i. Good, 
j. Good. 

And further he answers not. 

/s/ E. R. UTLEY. 

Subscribed and sworn to before me this 16th day 
of September, 1950. 

[Seal] /s/ LESLIE FORD, 

Notary Public. 

My Commission Expires 10-9-51. 

I do hereby further certify that the answers of 
the witness to the interrogatories were stenographi- 
cally taken and transcribed, in the exact language 
of the witness ; and, after they had been fully tran- 
scribed, were read by the said E. R. Utley and 
signed in my presence; and I further certify that 



vs. W. H. Townsend 29 

I am not a relative, or employee, or counsel or 
attorney to either of the parties. 

[Seal] /s/ LESLIE FORD, 

Notary Public. 

My Commission Expires 10-9-51. 
[Endorsed] : Filed September 20, 1950. 



[Title of District Court and Cause.] 

ORDER FOR JUDGMENT 

Upon presentation of findings of fact and con- 
clusions of law it is hereby ordered that judgment 
be entered in favor of the plaintiff and against 
the defendant in the sum of $2,530.25, together with 
the plaintiff's costs of suit incurred herein. 

It is the opinion of the court that a contract of 
employment was entered into between plaintiff and 
defendant, and pursuant thereto the plaintiff quit 
his job in Alabama and came to California to per- 
form this contract of employment. When the em- 
ployment for which he contracted became available 
he w T as refused employment. Under the authority 
of Millsap v. National Funding Corp., 57 C.A. (2d) 
772; and Seifert v. Arnold Bros., Inc., 138 C.A. 
324, the contract of employment must be considered 
to be permanent, and in accordance with the Mill- 
sap case, supra, two years must be considered to 
be a reasonable period of time. The court is of the 
opinion that during the two year period following 
November 2, 1949, when the plaintiff presented 



30 Fibreboard Products, Inc., etc. 

himself ready, willing and able to perform the con- 
tract of employment, he would have earned $7,- 
176.00. During this two-year period, if he con- 
tinues in his present occupation, he will have earned 
$4,645.75, leaving a loss in earnings for the two- 
year period in the sum of $2,530.25. 

The court is of the opinion that the plaintiff is 
not entitled to recover for traveling expenses from 
Alabama to California, because at the time of the 
contract of employment the defendant did not offer 
to pay his traveling expenses as a part of the con- 
tract of employment. And for the same reason 
neither is the plaintiff entitled to recover for any 
of the other items of special damages which he has 
alleged in his complaint, 

Let the counsel for the plaintiff present findings 
of fact and conclusions of law in accordance here- 
with. 

Dated June 25, 1951. 

/s/ OLIVER J. CARTER, 

United States District Judge. 

[Endorsed] : Piled June 25, 1951. 



vs. W. H. Townsend 31 

[Title of District Court and Cause.] 

FINDINGS OP FACT AND CONCLUSIONS 

OF LAW 

The above-entitled cause came on regularly for 
trial before this Court sitting without a jury on 
the 11th and 12th days of October, 1950, C. K. 
Curtright and Charles R. Garry appearing as at- 
torneys for plaintiff, and Brobeck, Phleger & Har- 
rison, by Samuel L. Holmes appearing as attorneys 
for defendant Fibreboard Products, Inc., and the 
Court having heard all the testimony and having 
examined the proofs offered by the parties, and 
the cause having been duly submitted, and the Court 
being fully advised in the premises, finds as follows : 

Findings of Fact 

1. That it is true that on or about the 18th day 
of October, 1948, the plaintiff and the defendant 
Fibreboard Products, Inc., entered into an oral and 
written permanent contract of employment w T hereby 
the parties mutually agreed that plaintiff should 
be employed by defendant corporation in the capac- 
ity of a recovery operator in the Recovery Depart- 
ment of the San Joaquin Division of said defend- 
ant corporation's newly constructed paper pulp mill 
plant at Antioch, California, said employment to 
commence when defendant's paper mill plant be- 
gan operations, and to continue for so long as plain- 
tiff's work was satisfactory, and that plaintiff's 
permanent position would be at the prevailing 
hourly rate of $1,725 per hour, forty hours per 



32 Fibreboard Products, Inc., etc. 

week, fifty-two weeks per year. It was further 
agreed that plaintiff would remove from the City 
of Tuscaloosa, Alabama, to Antioch, California, 
and pending the opening of defendant's paper pulp 
mill, said defendant would endeavor to find other 
employment for plaintiff. 

2. That it is true that at the time of the agree- 
ment between the parties, defendant corporation 
was advertising for and in need of experienced 
paper pulp men, and was creating a labor pool of 
experienced pulp mill men in contemplation of the 
opening of the pulp mill plant in Antioch, Cali- 
fornia. 

3. That it is true that plaintiff had had many 
years of experience in many phases of the paper 
pulp mill industry and was a seasoned and expe- 
rienced recovery operator. 

4. That it is true that plaintiff was gainfully 
employed in Tuscaloosa, Alabama, at the time of 
the agreement and that he did leave said employ- 
ment and did remove with his family to Antioch, 
California, and that he did pay his own expenses 
for said move, and plaintiff did dispose of his fur- 
niture and personal belongings in order to remove 
to defendant's place of employment. 

5. That it is true that on or about November 
2, 1949, defendant corporation's paper pulp mill 
was ready for operation, at which time, plaintiff 
did present himself ready, willing, and able to per- 
form his part of the contract of employment. 



vs. W. H. Townsend 33 

6. That it is true that when the employment 
for which plaintiff was contracted became available, 
defendant corporation refused, and does now refuse, 
to fulfill the terms of the said contract, and re- 
fused, and does now refuse, to employ the plaintiff. 

7. That it is true that plaintiff has performed 
all of the things and matters on his part to be 
performed under the terms of the said contract and 
that defendant corporation has wholly failed to 
perform the things and matters on its part to be 
performed under the said contract of employment. 

8. That it is true that a contract for permanent 
employment in the State of California is a con- 
tract to retain in employment for a reasonable 
period of time, and that a reasonable period of 
time is two years. 

9. That it is true that had plaintiff entered into 
the employ of defendant corporation as contracted 
at the time plaintiff presented himself ready, will- 
ing, and able, to the said defendant corporation, 
he would have earned the sum of $7,176.00 during 
a two year period. If plaintiff continues in his 
present occupation, he will have earned $4,645.75, 
or sustained a loss of earnings for the two year 
period in the sum of $2,530.25. 

From the foregoing facts, the Court concludes: 

Conclusions of Law 
1. That defendant corporation did breach the 
contract of employment and that plaintiff is en- 



34 Fibreboard Products, Inc., etc. 

titled to judgment in the sum of $2,530.24, together 
with his costs of suit. 

Let judgment be entered accordingly. 

Dated this 17th day of September, 1951. 

/s/ OLIVER J. CARTER, 

United States District Judge. 

Receipt of Copy acknowledged. 
Lodged September 11, 1951. 
[Endorsed]: Filed September 17, 1951. 



In the United States District Court for the 
Northern District of California, Southern Divi- 
sion 

No. 29449 

W. H. TOWNSEND, 

Plaintiff, 
vs. 

FIBREBOARD PRODUCTS, INC., et at, 

Defendants. 

JUDGMENT 

This cause came on regularly for trial before the 
Court sitting without a jury, on the 11th and 12th 
days of October, 1950, Messrs. Charles R. Garry 
and C. K. Curtright appeared as attorneys for 
plaintiff, and Messrs. Brobeck, Phleger & Harrison, 
by Samuel L. Holmes appeared as attorneys for 



vs. W. H. Townsend 35 

defendant Fibreboard Products, Inc., and the Court 
having heard the testimony and having examined 
the proofs offered by the respective parties, and 
the Court being fully advised in the premises, and 
having filed herein its findings of fact and conclu- 
sions of law, and having directed that judgment be 
entered in accordance therewith ; now, therefore, by 
reason of the law and findings aforesaid : 

It Is Hereby Ordered, Adjudged and Decreed as 
follows : 

1. That plaintiff have judgment against the de- 
fendant Fibreboard Products, Inc., in the sum of 
$2,530.25, with interest thereon at the rate of seven 
per cent per annum from date hereof until paid. 

2. That plaintiff have judgment against de- 
fendant Fibreboard Products, Inc., for his costs 
herein taxed at $35.75. 

Dated this 20th day of September, 1951. 

/s/ OLIVER J. CARTER, 

United States District Judge. 

Lodged August 31, 1951. 

[Endorsed] : Filed September 20, 1951. 

Entered September 20, 1951. 



36 Fibreboard Products, Inc., etc. 

[Title of District Court and Cause.] 

NOTICE OF APPEAL 

Notice Is Hereby Given this 3rd day of October, 
1951, that Fibreboard Products, Inc., one of the 
defendants above named, hereby appeals to the 
United States Court of Appeals for the Ninth Cir- 
cuit from the final judgment entered in this action 
on September 20, 1951. 

/s/ SAMUEL L. HOLMES, 

BROBECK, PHLEGER & 
HARRISON, 
Attorneys for Appellant 
Fibreboard Products, Inc. 

[Endorsed] : Filed October 3, 1951. 



vs. W. H. Townsend 37 

In the Southern Division of the United States 
District Court for the Northern Division of 
California 

No. 29449 

W. H. TOWNSEND, 

Plaintiff, 

vs. 

FIBREBOARD PRODUCTS, INC., et al., 

Defendants. 

REPORTER'S TRANSCRIPT 

Wednesday, October 11, 1950 

Before: Oliver J. Carter, Judge. 

Appearances : 

For the Plaintiff: 

C. K. CURTRIGHT ESQ., by 
CHARLES R. GARRY, ESQ. 

For the Defendants: 

BROBECK, PHLEGER & HARRISON, 

by 

SAMUEL L. HOLMES, ESQ., and 
MALCOLM TUFT, ESQ. 



38 Fibreioard Products, Inc., etc. 

WILLIE HENRY TOWNSEND 

the plaintiff, called as a witness in his own behalf, 
being first duly sworn, testified as follows: 

The Clerk: Would you state your name and 
address to the Court 1 ? 

A. Willie H. Townsend, 511 Third Street, An- 
tioch, California. 

Direct Examination 

By Mr. Garry: 

Q. Mr. Townsend, you are the plaintiff in this 
action, are you not ! A. Yes, sir. 

Q. You live in Antioch, California? 

A. Yes. 

Q. How long have you been there ? 

A. Since November 15, 1948. 

Q. Before that where did you live ? 

A. 2124 Eighth Street, Tuscaloosa, Alabama. 

Q. Tuscaloosa, Alabama? 

A. That is correct. 

Q. How did you come to California? I mean, 
how did you come to change your place of residence ? 

A. Well, I saw a notice in the Southern Pulp 
& Paper Manufacturer Journal out of Atlanta ad- 
vertising for a new [2*] Pacific Coast kraft pulp 
mill and I answered the ad, and on or about the 
4th or 5th of September, 1948, I received a letter 
dated September 1, 1948, from Mr. Stitt, stating 
that my application to the trade journal in Atlanta 
had been forwarded along with the recommendation 
from the North Carolina Pulp & Paper Company. 



* Page numbering appearing at top of page of original Reporter's 
Transcript of Record. 



vs. W. H. Townsend 39 

(Testimony of Willie Henry Townsend.) 
Q. On August 26th, 1948, you said you sent 

them a letter, is that right ? 
A. That is correct. 
Q. I show you a letter and ask you if that is 

the letter that you sent ? A. That is right. 

* * * 

The Clerk: Plaintiff's Exhibit 1 in evidence. 

(Whereupon letter referred to above was 
marked Plaintiff's Exhibit No. 1 and received 
in evidence.) [3] 



PLAINTIFF'S EXHIBIT No. 1 

Tuscaloosa, Ala. 
Aug. 26, 1948 
Box 24, 

Southern Pulp & Paper Manufacturer, 
75 Third St. N. W., 
Atlanta, Ga. 

Dear Sir: 

Would like to make application for one of the 
jobs in the new Pacific Coast Kraft Pulp & Paper 
Mill that you expect to start up around Dec. 1st, 
1948. I have 20 years experience in kraft pulp miJl 
work; having started with the Gulf States Paper 
Co., here, at Tuscaloosa, Ala., and served as a 
foreman at N. C. Pulp Co. Plant at Plymouth, 
N. C. Also served as Recovery Plant Foreman and 
Tour Foreman, and General Foreman for the N. C. 
Pulp Co. for nine years. 



40 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

I am married, have wife and three daughters. 
Do not drink and can furnish best of reference. 
Have never missed a day's work during the past 
20 years of pulp mill work. 

I would appreciate a job with you people. Will 
close with best regards, and hoping that I will hear 
from you in the near f urture. 

I am enclosing a copy of letter of recommenda- 
tion from the N. C. Pulp Co. 

With best regards I remain yours truly, 

W. H. TOWNSEND, 

Apt. 23A Druid Gardens, 
Tuscaloosa, Ala. 
P.S. 

I can report for work at any time and I will take 
any job you have to offer me. 
Thanks. 

Received August 31, 1948. 
[Endorsed] : Filed October 11, 1950. 



Q. Did you receive a reply from the letter I just 
now read to the Court ? 

A. The next reply I had from that was a letter 
dated September 1st, signed by Mr. Claude Stitt, 
manager, San Joaquin Division, Fibreboard Prod- 
ucts, Inc., Antioch, California. 

Q. That is these defendants both here? 



vs. W. H. Townsend 41 

(Testimony of Willie Henry Townsend.) 

A. That is correct. 

Q. I show you this letter and ask you if that 
is a copy of a letter you received from them? 

A. That is correct. That is a copy of the letter 

that I received on about September 4th or 5th, I 

received that. [5] 

* * * 

The Clerk: Plaintiff's Exhibit 2 in evidence. 

(The letter referred to was marked Plain- 
tiff's Exhibit 2 in evidence.) [6] 



PLAINTIFF'S EXHIBIT No. 2 

September 1, 1948 
Mr. W. H. Townsend, 
23A Druid Gardens, 
Tuscaloosa, Alabama. 

Subject: Possibility of Employment in Pulp Mill. 

Dear Mr. Townsend : 

Your letter of August 26th to the Southern Pulp 
and Paper Manufacturer has been referred to the 
undersigned. 

In connection with said letter we are enclosing 
one of our standard application for employment 
blanks which we would like to have you fill out 
and return at your earliest convenience. 

Based on your experience we feel that you can 
be reasonably assured that we will have some posi- 
tion available for you. However, before making 



42 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
actual commitments we are waiting until our Pulp 
Mill Superintendent gets on the job and he will 
have as one of his first responsibilities the job of 
lining up the various crews. For your information 
a Mr. T. Lindley will be our Pulp Mill Superin- 
tendent and he will be on the job as of October 1st. 

Feeling that you may want for your record fhe 
recommendation given you by Mr. Rasmuson of the 
North Carolina Pulp Company we are enclosing 
same with this letter. However, we have taken the 
liberty of making a copy of said reference for our 
files. 

Thanking you for your inquiry and awaiting the 
return of the filled-out application blank, we re- 
main, 

Yours very truly, 

FIBREBOARD 
PRODUCTS, INC., 
San Joaquin Division. 

C. M. STITT, 

Plant Manager. 
CMS:ZR 

Ends. 

[Endorsed] : Filed October 11, 1950. 

* * * 

Q. Now, no, Mr. Townsend, after you received 
the letter of September 1, what did you do? [7] 

A. I filled out this application ; made application 
for tour foreman's job, due to the fact that I had 



vs. W. H. Townsend 43 

(Testimony of Willie Henry Townsend.) 

been tour foreman with the North Carolina Pulp & 

Paper covering the entire pulp mill. 

And then on the 18th of October I called Mr. 
Lindley on the telephone, and he told me that he 
had a copy of my letter of recommendation, also 
my letter to Mr. Stitt, and a copy of Mr. Stitt's 
letter to me ; that they was looking for experienced 
kraft pulp mill men, and a man with 20 years, it 
seemed like I ought to be qualified, and he tell me 
that if I w y anted a position out there that they would 
place me in one of the other plants until such time 
as they could use me in the new mill. 

I asked him, would it be a permanent job, and 
he told me that I could depend on it to be a per- 
manent job. I told him in that case I would bring 
my family and I would come prepared to make 
California my home from now on ; that I was get- 
ting old, I wanted to stick in one place and settle 
down. He asked me did I have transportation. I 
said yes, sir, I had enough money. He said it would 
be refunded. As far as my driving a car out here, 
I didn't tell Mr. Lindley that. 

Q. Please state the conversation and don't an- 
ticipate what someone else will say. Please don't 
do that. I think we will get along better. 

A. So I told Mr. Lindley that I would report 
for work on the [8] 15th of November, 1948. 

Q. This is over the telephone on October 18th, 
1948 % A. Yes, sir, that's right. 

Q. Had you sent in your application prior to 
that time? 



44 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

A. Yes, sir, I sent in my application in Sep- 
tember. 

Q. Do you recall what date in September? 

A. It must have been around between the 6th 
and the 10th. 

Mr. Garry: Do you have a copy of the appli- 
cation ? 

Mr. Holmes: Yes, I do, but there have been 
some markings put on it which I preferred to have 
a witness explain. I intended to offer it as my ex- 
hibit, 

Mr. Garry : That is all right. 

Mr. Holmes: After these additional markings 
on it had been explained. 

The Court: All right. 

Mr. Garry: That is perfectly all right. 

The Court: You proceed with your case as you 
see fit. 

Q. (By Mr. Garry) : This was the conversation 
you had on October 18th? A. Yes. 

Q. Did you hear from any of the defendants 
after that? 

A. I received a letter on or about October 24th 
from — dated October 19th, from Mr. Lindley. 

Q. Is this the letter that you received from the 
defendants, Mr. Townsend (showing) ? [9] 

A. That is the letter I received on or about Oc- 
tober 24th. 

* * * 

The Clerk: The Plaintiff's Exhibit 3 in evi- 
dence. 



vs. W. H. Townsend 45 

(Testimony of Willie Henry Townsend.) 

(Letter referred to was marked Plaintiff's 
Exhibit No. 3 in evidence.) [10] 



PLAINTIFF'S EXHIBIT No. 3 

Fibreboard Products, Inc. 

San Francisco 



October 19, 1948. 



San Joaquin Division 

Mr. W. H. Townsend, 
Apt. 23A Druid Gardens, 
Tuscaloosa, Alabama. 



Subject: Possibility of Employment in Re- 
covery Department. 

Dear Mr. Townsend : 

We were pleased to receive your telephone call 
of October 18th. 

In line with our conversation the new mill is 
still under construction and it will be about the 
first of March before actual operations begin. How- 
ever, if it is your desire to come to the coast at an 
earlier date we will place you in one of our mills 
at whatever they might have for you until we 
begin operating. 

Housing, as far as rentals are concerned, is very 
critical. However there are homes available for 
purchase ranging in price from $6,500 to $9,000. 



46 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Thanking you for your telephone call, we remain, 

Yours very truly, 

FIBREBOARD 
PRODUCTS, INC., 

San Joaquin Division, 

/s/ M. T. LINDLEY, 
M. T. Lindley, 

Pulp Mill Superintendent. 
MTL:GR 
cc N. M. Brisbois 
T. N. Bland 
G. B. McCuish 

[Endorsed] : Piled October 11, 1950. 



Q. Did you do anything after you received that 
letter in furtherance of your coming to California % 

A. No, I didn't. I had told him on the telephone 
on the 18th that I would report for work, for duty 
on November 15th. So I quit my job with Otis 
Elevator on or about the 20th of October. I tell 
Mr. Utley that I was leaving on or about [11] 
November 7 for California. 

The Court : When was that that you quit I 

A. I turned in my resignation on or about the 
20th. My last day's work with Otis Elevator was 
November 7 at noon. 

Q. (By Mr. Garry) : You were working for the 
Otis Elevator Company at the time? A. Yes. 



vs. W. H. Townsend 47 

(Testimony of Willie Henry Townsend.) 

Q. What were you doing there? 

A. I was elevator erector helper at $1.58 an 
hour, double time for all overtime. 

Q. How long had you been working there? 

A. I had been working for them a little better 
than three months. I think I went to work for them 
in August % 

Q. And you left your employment at that time? 

A. That is correct. 

Q. And then what did you do ! 

A. Well, on Sunday morning, November 6th, my 
mother brought a Birmingham News Age Herald in 
and told me there was an ad 

Q. Mr. Townsend, so that there won't be any 
objection from the Court or the attorneys on the 
other side, please don't tell us what some other 
person said, except what the defendants ever said 
to you. 

A. I had told Mr. Utley November 7th would be 
my last day. On Sunday, November 6th, I saw in the 
Birmingham News Age Herald an ad where a lady 
was wanting somebody to drive a car [12] to Fort 
Mason, California. She inserted this ad on a Sat- 
urday; it came out Sunday morning and gave the 
telephone number in Birmingham. I called the lady 
on the telephone, told the lady I had permission 
to be in Antioch on November 15th to go to work 
for Fibreboard Products, Inc., and told her that 
I could furnish her with references, if she hadn't 
engaged somebody to drive this Pontiac to drive 
this car to Fort Mason, that I would be glad to 



48 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
come to Birmingham and talk with her in regards 
to bringing it out here for her. I told her I had a 
wife and three daughters, if I brought the car out 
here for her I would want to bring my family alon# 
with me. So a brother who is a superintendent of 
the Southside Post Office drove me to Birmingham, 
Alabama, and I talked to the lady, that due to — 
after she read this letter from Mr. Stitt and Mr. 
Lindley, so she figured I had a position in Cali- 
fornia, so she granted me permission to drive out 
the Pontiac car and bring my wife and daughters, 
and that was my mode of transportation to Cali- 
fornia. 

Mr. Holmes : I move to strike that portion of the 
answer which has to do with what other people 
figured or said. 

The Court: It will go out. [13] 

* * # 

Q. Mr. Townsend, you drove a vehicle, did you, 
that you engaged some time in November? 

A. That is true. 

Q. Now what day did you get the automobile? 

A. On the 8th day of November. 

Q. On the 8th day of November you started 
toward California, is that correct? 

A. That is true. 

Q. I notice in your interrogatories the defend- 
ants propounded to you that you enumerated the 
total expenses at $209.35; is that correct? 

A. That is the actual meals and gas and oil. 



vs. W. H. Townsend 49 

(Testimony of Willie Henry Townsend.) 

Q. You have expended that money bringing your 
family and yourself in this automobile? 

A. That is correct. 

The Court : What is that figure again? 

Mr. Garry: $209.35. 

Q. Is that the total amount that you spent in 
transportation down here? 

A. That was all I spent on transportation. I 
spent more than that, you know, the kids have got 
to buy something; but that is the actual cost of 
transportation. 

Q. What else did you do in coming out to Cali- 
fornia after you received this letter from Mr. Lind- 
ley on the 20th day of October, 1948? [14] 

A. We disposed of all our household furnishings 
due to the fact that we had inquired as to the cost 
of bringing it out here. It was prohibitive. It w T ould 
cost five or six hundred dollars to ship it out. I 
didn't have that much money to pay for it, and I 
felt that I could dispose of it for money that would 
help me pay my debts to a certain extent, and 
leave me money to make the trip and enough — and 
part of the money that I got from the sale of the 
furniture we used. Some furniture we sold after we 
arrived in November. We had left it with my 
mother, and she disposed of it, and altogether 

Q. How much did you have? 

Mr. Holmes: We object to that as calling for 
a conclusion of the witness. [18] 



50 Fihreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

The Court: I will overrule the objection. 

A. I married in 1923. I bought one bedroom 
set from C. W. Allen, Tuscaloosa, Alabama, who 
has been in business over the past 55 years, busi- 
ness in furniture, and they are still there, and the 
number of the place is 2327 — 2227 is the number, 
I think, on the corner of 23rd Avenue and 6th 
Street. I bought a bedroom suite from them and 
paid between four and five hundred dollars for 
it. That was in 1923. It was pre-war stuff. I bought 
the furniture from C. W. Allen, and I bought it 
from the Home Furniture Company, and as I say, 
I accumulated this [19] over a period of approxi- 
mately 25 years. The actual cost — I don't have that 
good a memory; I don't remember that it cost, but 
I had five rooms of furniture, enough to furnish 
five rooms before I came to California, and it cost 
me better than $2,000, your Honor, and I bought 
it over a period of years. I ran up a bill in Antioch, 
and when these people didn't give me a job, I said 
to the people there, "Come on over; you will have 
to take your furniture back." He said, "Let me 
look at the bill." He said, "Townsend, you do as 
you like about that bill; but come on over to the 
office." 

Mr. Holmes: Your Honor, I move that that an- 
swer be stricken out. 

The Court: That part of the answer that refers 
to what this furniture company said to him and 
what he said to them will go out. 



vs. W. H. Townsend 51 

(Testimony of Willie Henry Townsend.) 

The Witness : I haven't paid them anything since 
these people let me go. 

The Court : Just a moment. You answer the ques- 
tions propounded to you by counsel. 

Q. (By Mr. Garry) : You had five rooms of 
furniture, is that correct? A. Yes. 

Q. At Tuscaloosa? A. Yes, sir. 

Q. On or about the end of October, 1948? [20] 

A. Yes, sir. [21] 

* * * 

Q. (By Mr. Garry) : What did you have in 
the five rooms of furniture, Mr. Townsend? 

A. Well, I had a kitchen outfit and a dining 
room set, a rug ; and I had a bedroom set and three 
iron beds and a living room bed and chairs and 
a sofa. 

Q. Anything else? 

A. Well, there was some mirrors. In other words, 
what an ordinary person would have in a five-room 
home I had in mine, that I had accumulated over 
a period of 25 years. 

Q. And do you know what you paid for the 
total amount of furniture you had? 

A. No, sir, I don't. 

Q. Do you know what you had to pay the same 
equivalent amount of furniture? 

A. I haven't duplicated it yet. 

* * * 

The Court: Do you have any approximate idea 
of how [22] much you paid for it? 



52 Fibreboard Products, Inc., etc. 

(Testimony of "Willie Henry Townsend.) 

A. I would say $2500, your Honor. 

Q. That is your only independent re-collection? 

A. Yes. 

Q. (By Mr. Garry) : Some of this furniture 
you had since 1923 and others you discarded and re- 
placed as the years went on ; is that true ? 

A. That is correct. Some of it my wife inherited 
from her father's estate. 

Q. You are not counting that as part of the 

$2500, are you ! 

* * * 

A. No, sir, I am not. That w T as a bookcase with 
a bunch of old books. 

Q. Your best estimate is that this furniture that 
you purchased yourself over a period of years cost 
$2500? A. Yes, sir. 

Q. And at the time, the end of October, 1948, 
what shape was that furniture in? 

A. It was in good shape. 

Q. You mean you were able to use it? 

A. Yes, sir. 

Q. What did you sell this furniture for? [23] 

* * * 

A. As I said in my previous testimony, that we 
disposed of most of it before we left, but some of 
it was sold after we left Tuscaloosa, Alabama, and 
it was less than $900 altogether. 

The Court: How much was it, about? 

A. The exact amount? 



vs. W. H. Townsend 53 

(Testimony of Willie Henry Townsend.) 

Q. Approximately, as near as you can give it 
to me. 

A. Between eight and nine hundred dollars, your 
Honor. 

Q. (By Mr. Garry) : Now, Mr. Townsend, you 
say you have been in paper work for 20 years'? 

A. I worked in kraft pulp mills for 20 years 
since 1928, and with the exception of two years 
that I was union representative for the International 
Brotherhood of Pulp and Sulphite Paper Mill 
Workers and Operating Engineers, which have 
charters in the paper mills and paper mills through- 
out the South. 

Q. Which years did you work for the Inter- 
national 1 A. '46 to '47. 

Q. Which years did you work in the actual 
paper industry ? 

A. I went to work for the Gulf States Paper 
Company on the 6th day of June, 1928 ; I left them 
in 1935 and went to work with the North Carolina 
Pulp and worked with them until the 14th of April, 
1945. [24] 

Q. Whom did you go to work for after that? 

A. I went to work for the Operating Engineers. 

Q. As business agent? 

A. No, when I left the North Carolina Pulp 
and Paper Company I went to work for the Bur- 
lington Railroad in Lincoln, Nebraska. 

Q. When did you go to work as business agent ? 

A. I went to work for them, I think, the 1st 
of May, 1946. 



54 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. Where did you go to work ? 

A. I worked with Division 1 of the Pulp Sul- 
phite and Paper Workers, A F of L. 

Q. As representative for them? 

A. Field representative, covering the paper in- 
dustry in the South. 

Q. Tell us what happened when you came to 
California, Mr. Townsend. 

A. I arrived here on the night of the 14th of 
February and went to Mr. Lindley's office on th«3 
morning of the 15th of November and intro- 
duced 

Q. That is 1949, is it not ? 

A. 1948. And I introduced myself to Mr. Lind- 
ley. And he told me, he said, "Well, all salaried 
jobs have been filled, Townsend; you can pick out 
any job you want in the pulp mill and I will be 
glad to put you there." I said, "Mr. Lindley, due 
to the fact I have 13 years in the recovery depart- 
ment, I will apply for a recovery operator's job." 
That was the understanding. [25] He said, "I w 7 ill 
see if I can get you a job in a week or ten days 
in the San Joaquin Division." I says, "Mr. Lind- 
ley, I was bringing my family up here to live in 
Antioch, and I only got seven bucks on hand." I 
said, "Don't you have a plant here in Antioch, 
in the Antioch Division?" He said, "Yes." He 
said, "It may take a few days to get you located." 
I said, "That's all right; I am willing to wait." 
So I waited approximately one week; I think it 
was on either the 22nd or 23rd I went to work for 



vs. W. H. Townsend 55 

(Testimony of Willie Henry Townsend.) 
Mr. Van Voorhis, the gentleman sitting back there 
on the seat — I wouldn't be positive — either the 22nd 
or 23rd of November, 1948, I went to work for 
him as a Class B helper in the mechanical depart- 
ment. 

Q. Let us get to the conversation you had with 
Mr. Lindley on November 15, 1948. You say he 
offered you a recovery operator's job at that time? 

A. He told me that tour foremen's jobs had all 
been promised in the pulp mill but, he says, "You 
can pick any job you want in the pulp mill and I 
will give it to you ; the first vacancy as tour foreman 
I will give you consideration, because you are an 
experienced man." He asked me about how long 
I had worked in various departments of the mill, 
and he also asked me did I want a digest cook's 
job. I told him I preferred a recovery operator; 
I felt I could be of more service to the company be- 
cause I had more service as a recovery operator. 

Q. When did he tell you he would have a re- 
covery operator's [26] job for you? 

A. On the 15th of November he said as soon as 
the plant got ready to operate. 

Q. That is the plant you came down here for? 

A. Yes, sir, the San Joaquin Division. 

Q. Did he tell you what that job paid? 

A. He didn't tell me that particular day, no. 

* * *■ 

Q. (By Mr. Garry) : What did it pay October 
14, 1949? A. $1.75 and y 2 an hour. 



56 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. Do you know what it pays at the present 
time? 

A. They got about a seven cent an hour in- 
crease. 

Q. How much ? 

A. Seven cents an hour since that time. 

Q. Did you discuss with him about your trans- 
portation fare on the 15th day of November? 

A. No, sir. [27] 

Q. You didn't discuss that subject with him? 

A. No, sir. 

Q. Then what happened, Mr. Townsend f 

A. As I say, I went to work with Mr. Van 
Voorhis on about the 22nd or 23rd of November. 

Q. Doing what? 

A. Working in the mechanical department as 
Class B helper, $1.54 an hour. 

Q. You continued doing that until when ? 

A. September 2, 1949. 

Q. Then what happened? 

A. He called me in the office and told me my 
services were no longer needed. 

Q. Who called you in the office? 

A. Mr. Sanford, the manager. 

Q. What did he say? 

A. When I walked in he handed me a letter and 
said, "Your services are no longer required, and 
you can go in the office and get your pay." I told 
him, " being I am going to be in Antioch on the 
7th, I would prefer to take my money on the 7th." 
I didn't open the letter, I just stuck it in my 



vs. W. H. Townsend 57 

(Testimony of Willie Henry Townsend.) 
pocket, but I didn't even read the letter until I got 
out of the plant. The letter was from Mr. Van 
Voorhis stating that I was let out. 

Q. You say this letter was given you on Sep- 
tember 2, 1949? 

A. By Mr. Sanford, the manager of the Antioch 
plant of [28] Fibreboard. 

Q. Is this the letter that was given you, Mr. 
Townsend ? (Showing the letter.) 

A. Yes, that is the original letter that was given 

to me by Mr. Sanford, manager of the Antioch 

plant. 

# * * 

The Clerk : Plaintiff 's Exhibit 4 in evidence. [29] 



PLAINTIFF'S EXHIBIT No. 4 

Fibreboard Products, Inc. 
Antioch, California 

September 2nd, 1949 
Mr. W. H. Townsend 
2602 Wills Ave. 
Antioch, California 

Dear Sir: 

During the last several months it has been our 
policy to give employment to applicants referred to 
us by the San Joaquin Division. Oftentimes extra 
jobs were made, men were placed on jobs above 
their qualifications, or given jobs which would have 
been filled with a more qualified type of employee 
either hired or preferably from our own ranks. 



58 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Due to the curtailment of our Maintenance De- 
partment, and because of our responsibility to older 
employees, and as you were employed by request 
of the San Joaquin Division and given employment 
here until such time that the San Joaquin Division 
offered you employment, and as we are advised that 
you refused employment on Wednesday, August 31, 
1949, at the San Joaquin Division, we find it neces- 
sary to terminate you as of this date. 

Yours very truly, 

FIBREBOARD 
PRODUCTS, INC., 
Antioch Division, 

/s/ WM. VAN VOORHIS, 
Plant Engineer. 

W. VanVoorhis :MJ 

CC: IntBrotherhood Pulp, Sulphite & Papermill 
Workers, Local 249. 
Attn : Mr. Renold Victor 
Mr. George Coalter 

[Endorsed] : Piled October 11, 1950. 



Q. When did you read that letter? 
A. I didn't read it until after I left the plant. 
Q. When was that? When did you leave? 
A. September 2nd. The afternoon of Septem- 
ber 2nd. 



vs. W. H. Townsend 59 

(Testimony of Willie Henry Townsend.) 

Q. Did you do anything about that letter? 

A. Yes, sir. 

Q. What did you do? 

A. On Saturday morning, September 3rd, I got 
the secretary of the local, George Colter, also a 
member of the shop committee, and went to Mr. 
Claude Stitt's office, at the San Joaquin Division 
of Fibreboard. 

Q. What date was that? 

A. September 3rd, on a Saturday morning, be- 
tween ten and eleven o'clock. 

Q. Yes. What happened? [30] 

A. Well, I asked to see Mr. Stitt, and he told 
George and myself to come in. So we walked in. I 
told Mr. Claude that Mr. Lindley had told me the 
Sunday previous, on August 28th, that there would 
be no employment for me at the San Joaquin Divi- 
sion due to rumors. 

Q. Just a minute. You had seen Mr. Lindley 
prior to September 2nd? 

A. I called Mr. Lindley on the phone on a 
Thursday night, August 18th, and asked him when 
— on August 25th, it was, on Thursday, August 25th, 
and asked — told him that I had been waiting ap- 
proximately ten months for that recovery operator's 
job that had been promised me. And he said, 
"Well, Townsend, well," he says, "I have been 
hearing a lot of stories about you." I said, "Wait 
a minute; that is exactly what you have probably 
been hearing, stories." He says, "Where are you?" 
I says, "I am at the San Joaquin plant working 



60 Fibreioard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

for Mr. Wolcott." He says, "How about meeting 

me in my office Saturday ?" I said, "All right, sir, 

I will be glad to. What time?" He says, "Nine 

o'clock." 

Q. What day was that? 

A. That would be the 27th day of August on a 
Saturday. 

Q. That he wanted to meet you? 

A. He wanted to see me at his office at the San 
Joaquin Division. So I told Mr. Lindley that I 
would be there on a Saturday. I told Mr. Wolcott 
on a Friday that Mr. Lindley had [31] told me he 
wanted to see me at the San Joaquin plant; that 
he had been hearing a lot of stories about me, and 
I told Mr. Wolcott — I can remember the words — 
that "the way he talked, it looks like he was going 
to give me the gate before they ever opened up the 
plant. Mr. Wolcott said, "Well, Alabam" — that is 
what they called me at the old mill — he said, "Well, 
Alabam, if you get the gate out there, when you 
come back down here you will not be able to get a 
job here, because you was put here by the San 
Joaquin Division." I says, "Well," I says, "I know 
I haven't done anything to cause me to get the gate 
down there." He says, "No, but I know they will." 

Q. Who said that? 

A. Both Mr. Wolcott and Mr. Van Voorhis. 

Q. Who is Mr. Wolcott? 

A. He is a master mechanic at the Antioch mill. 

Mr. Holmes: I move to strike that portion of 
the answer pertaining to the various conversations 



vs. W. JS. Townsend 61 

(Testimony of Willie Henry Townsend.) 

about what would happen to him or what might 

happen to him. [32] 

* * * 

The Court: Overruled. 

The Witness: So Mr. Wolcott says, "OK, Ala- 
bam," he says, "if you get fired out there, you will 
get the gate down here, too." 

Q. (By Mr. Garry) : On what day was that? 

A. This was Friday, the 26th day of August, 
1946. 

Q. Was this after the conversation you had had 
with Mr. Lindley? 

A. I had a conversation with Mr. Lindley over 
the telephone Thursday night, August 25th. 

Q. He told you to meet him at nine o'clock on 
Saturday, the 27th of August? 

A. So I said, "Well, I'm sorry, Mister; I'm 
sorry, I'm just a poor boy trying to do the best I 
can." I said, "If you let me out, there is no hard 
feelings." So on a Saturday— on a Friday after- 
noon, then that said afternoon, then Mr. Wolcott 
came in and said, "I want you to work extra with 
the pipefitter; that will be time and a half." I 
called Mr. Lindley again Friday night and I told 
him I had a chance to make time and a half at the 
Antioch mill, how about making some other date? 
He said, "OK, make it Sunday." 

"OK; I'll be there." On Sunday morning, the 
28th of August, I met Mr. Lindley, and he said, 
"Let's go in Mr. McCuish's office." Mr. McCuish 
is the personnel manager of [33] Fibreboard. So 



62 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
we walked in Mr. McCuish's office, and he said, 
" Townsend, due to rumors I have heard about you, 
there will be no job for you at the San Joaquin 
Division of Fibreboard Products." I said, "I'm 
sorry, Mr. Lindley." I said, "You wouldn't know 
who stated those rumors, would you?" 

"No, all I can tell you is there will be no employ- 
ment." 

"You don't realize it, Mr. Lindley, but you are 
pushing me out of this job here and also the job at 
the Antioch Division." He said, "Why 1 ?" I said, 
"Wolcott told me yesterday that if I didn't have 
no job here I wouldn't have one down there when 
I came back." He said, "Have you got no other 
job you can go to, Townsend?" I said, "No." He 
says, "Wait a minute, I got a good friend, super- 
intendent of a paper mill in Springville, Oregon. 
When you get back home you call him on the tele- 
phone and tell him as a personal favor I want him 
to give you a job." So when I got home I called 
the gentleman and told him what Mr. Lindley said. 
He said, "How come you ain't going to work for 
Mr. Lindley?" I said, "I don't know; Mr. Lindley 
said he was letting me go on account of rumors. He 
has got the right to believe anything he likes." [34] 

The Court: Just a moment. 

Mr. Holmes: I move that the latter part of his 
answer go out. 

The Court: The conversation that took place 
between him and the man in Oregon should go out. 



v s. W. H. Townsend 63 

(Testimony of "Willie Henry Townsend.) 

Q. Let me ask you a question ; we can get along 
better that way. This w T as on the 28th day of Au- 
gust, 1948? [35] A. 1949. 

Q. 1949? A. Yes. 

Q. That Mr. Lindley had this conversation with 
you in the personnel manager's office? 

A. That's right. 

Q. He told you he wasn't going to put you to 
work? A. Yes. 

Q. When the new plant opened up, is that cor- 
rect? A. That's right. 

Q. Did any other conversation take place with 
Mr. Lindley that day? 

A. I shook hands with him and told him there 
was no hard feelings and any time I could be of 
any assistance to him I would be glad to help him 
in any way I could; that I would have to stay in 
Antioch because I didn't have no money to get out 
of there; I would probably be around for quite a 
while. 

Q. Then what happened? 

A. I went back to the Antioch mill on Monday. 

Q. That would be August 29? 

A. That's right. I told Mr. Wolcott ever I says 
— I explained to him what had happened. He said, 
"I will go and see Mr. Van Voorhis." He went and 
saw Mr. Van Voorhis. And anyway, a few minutes 
later he told me to come back. He said to work 
with George Machado, pipefitter. "It looks like 
you are going to be [36] able to stay on here. ' ' I 
told him, "That suits me, a day-time job. I have 



64 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
been working nights the last twenty years. I hope 
I stay here." Everything was lovely. And then I 
worked Monday, and Tuesday, and on Wednesday 
they asked me to go to the — about ten minutes to 
twelve Mr. Wolcott came to me and he said, " Town- 
send," he says, "I don't know what they want down 
there, but they want to see you at the San Joaquin 
Division at five minutes to one this afternoon." 

Q. That would be August 31? 

A. That's right. He says, "I don't know what 
they want down there. You will have to go to lunch 
now, and when you go and get your lunch, eat your 
lunch and go up to the San Joaquin Division and 
report to Mr. McCuish, the personnel man." 

Q. So we will get this straight, the pulp work 
you were working in is at Antioch? 

A. Yes, sir. 

Q. And where is this so-called San Joaquin 
Division? A. It is in Antioch. 

Q. Is it a different location? 

A. About two and a half miles away. 

Q. They are both fibreboard mills, is that cor- 
rect? A. Yes. 

Q. Go ahead with your story. 

A. So I went and ate my lunch, went back and 
punched my card at 12 :35, and drove out to the San 
Joaquin plant, and I got to [37] the San Joaquin 
plant about 20 minutes to one. About ten minutes 
to one Mr. Bob Puller, the mill superintendent, 
came by. I was sitting by the clock where you 
punch in. So when he came by, he said, "How are 



vs. W. H. Townsend 65 

(Testimony of Willie Henry Townsend.) 
you making out?" I says, "OK, Mr. Bob." One 
o'clock came, and Mr. McCuish didn't show up. I 
asked his secretary, "Mr. Wolcott told me to re- 
port back when I got through." She said, "Mr. 
McCuish just called me. He said he will be about ten 
minutes late getting back." Mr. McCuish, "Mr. 
Fuller wants to see you." I says, "There is some- 
thing funny. Mr. Fuller just passed me about forty 
minutes ago." 

She says, "He wants to see you over there in the 
paper mill." I said, "All right, I will go over 
there," and I saw him and Mr. Woods talking. I 
waited, and when they got done Mr. Bob Fuller 
said, "Townsend, I got a job for you." I says, 
"What is that? You know I am a pulp mill man. 
I have never worked in a paper mill. You know a 
man works in the pulp mill for twenty years he 
can't do much else." I says, "What kind of a job?" 

"Operating a broke baler." I says, "Wait a 
minute, Mr. Bob. You didn't know^ that Mr. Lind- 
ley told me last Sunday that there would be no 
employment for me at the San Joaquin Division of 
Fibreboard?" He said, "No, did he tell you that?" 
I said, "Yes, he told me that last Sunday morn- 
ing." He said, "That makes a difference there. 
They told me you didn't want a job." [38] I said, 
"Mr. Bob, I am getting $1.54 an hour and working 
overtime, and this broke baler is $1.42 an hour with 
no overtime." He says, "If you are working — they 
told me you wasn't working. Also I didn't know 
Mr. Lindley told you there would be no employ- 



66 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
ment." I said, " That's right. Under them condi- 
tions, will you give the job to somebody else*? This 
fellow Fisher has been staying here since Febru- 
ary 10." 

Q. In other words Mr. Fuller at that time on 
Wednesday, August 31 A. Yes. 

Q. Told you that in this paper mill he would 
give you a job as broke millwork? 

A. Broke bale operator. 

Q. Broke bale operator? A. Yes, sir. 

Q. At $1.42? A. $1.42y 2 . 

Q. $1.42y 2 an hour? A. Yes. 

Q. You were already earning 

A. $1.54. 

Q. With overtime? A. Yes, sir. 

Q. Time and a half overtime, is that correct? 

A. Yes, that is correct. [39] 

Q. Did you have any further conversations with 
the defendants that day? A. Yes, sir. 

Q. When was that? 

A. When I came out — when Mr. Bob told me 
that there was a misinterpretation; that he had 
been told I didn't have no job; he says, "I don't 
blame you; I wouldn't quit a $1.54 job to go to 
work at $1.42 1 /^. Under them conditions I will give 
somebody else the job." I asked him how about 
giving it to this George Fisher, that he had been 
staying around since February looking for a job. 

Q. Let us limit ourselves to matters concerning 
you. 

A. When I came out of the plant I went in the 



v s. W. H, Townsend 67 

(Testimony of Willie Henry Townsend.) 
office and told Mr. McCuish that I was going to 
send Fisher up for that job. Mr. McCuish said, 
' ' Well, I don't know. I guess somebody told you 
some of the things that were said about you." I 
said, "Yes, they have, if you want to know." 

Q. This is Mr. McCuish? A. That's right. 

Q. What does he do? 

A. He is the personnel manager of the San 
Joaquin Division. 

Q. Go ahead. 

A. So I went back to the old Antioch mill. I 
arrived there at five minutes to three. When I went 
in I saw Mr. Van Voorhis and I said, "Gentlemen, 
I have wasted two hours of somebody's [40] time." 
I said, "I have been out there on a wild-goose 
chase. When I punch my card this afternoon at 
five o'clock do I put down six hours or eight hours? 
I don't want any question come up anyway because 
there is enough stories and rumors going around 
about me; I don't know what it is all about, but I 
want to keep the record clear. I haven't did any 
mechanical labor since twelve o'clock. When I make 
out my time card do I put down eight hours or six 
hours?" 

Mr. Wolcott then told Mr. Voorhis, "Mr. Van 
Voorhis," he said, "I think he ought to put down 
eight hours." 

Mr. Van Voorhis said, "OK, you put down eight 
hours." I said, "Thank you." I went back to work. 
That was Wednesday. I worked Wednesday, Thurs- 
day and Friday, and Friday they called me in and 
told me I was washed up. 



68 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. That was when you got that letter, Exhibit 4, 

I believe? A. That's right, on September 2. 

Q. Prior to this time, Mr. Townsend, did you 

have any discussion with any of the defendants in 

reference to your transportation fare? 

A. On August 14 I was sweeping up, working 
as a janitor; I had been sent out from Antioch on 
a seven-day assignment as janitor and cleanup man, 
and I was sweeping up in the machine room. 

Q. At the San Joaquin plant? 

A. San Joaquin plant. And I asked Claude Stitt 
when I could expect my transportation. He told 
me, "It won't be long you [41] will be operating 
that recovery machine over there. I can't pay you 
your transportation until you go to work for the 
San Joaquin plant. You haven't worked for us 
yet." I said, "OK, that is fine." 

Q. Mr. Stitt is the gentleman who wrote you 
on September 1? A. Yes. 

Q. In the letter dated September 1, 1948? 

A. Yes. 

Q. At Tuscaloosa? A. Alabama. 

Q. Alabama, is that correct? 

A. That is correct. 

Q. This conversation you had was August 14, 
1949? A. On a Sunday, yes, sir. 

Q. And he told you that your transportation 
would be paid ? 

A. I couldn't get it until I went to work for the 
San Joaquin Division. 

Q. In the recovery room? 



vs. W. H. Townsend 69 

(Testimony of Willie Henry Townsend.) 

A. That's right, 

Q. And they hadn't opened up? 

A. Yes, sir. 

Q. He told you that? A. Yes, sir. 

Q. Now, after you received this letter on Sep- 
tember 2, what if anything did you do with the 
defendants? Did you have any [42] further con- 
versation with them ? 

A. I went to see Mr. Smith on Saturday, Sep- 
tember 3. 

Q. What happened then? 

A. George Colter, one of the members of the 
shop committee from the Antioch mill, went with 
me, and I told Mr. Stitt, I says, "Mr. Clark, it 
looks like they are pushing me around here for no 
reason at all. I don't know what it is all about." 
I had lost out in the Antioch and the San Joaquin 
Division. He says, "What happened?" I says, 
"Mr. Lindley told me last Sunday there would be 
no employment here; then yesterday afternoon I 
was let out from the Antioch mill." And Mr. Stitt 
said, "Well, Mr. Lindley didn't have authority to 
tell you that you wouldn't have no employment 
here." I said, "Nevertheless, he did tell me that." 

Q. This was on the third day of September? 

A. Yes, sir. 

Q. That Mr. Stitt told you that? 

A. In Mr. Stitt 's office, yes, sir. So he said, 
"Mr. — and Mr. Fuller are on an appeal commit- 
tee." I said, "Do you mind if I appeal to those 
gentlemen, and let us clear this thing up so that I 



70 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
can exonerate myself? Mr. Lindley will tell you 
that he said there will be no employment for me 
due to rumor. I was working this last week at 
Antioch, and I was let go this week." I said, "Now 
then, I have got busted out; I ain't got no job; I 
am a long ways from home; I would like to [43] 
get squared up. If you can give me any assist- 
ance — ." He says, "Them fellows are too busy; I 
ain't got time to talk to you." I says, "Sometime 
later?" "I will be glad to talk to the men," he 
said, "and maybe we can get together sometime 
later." I said, "OK." That was approximately the 
conversation. 

Q. Did you discuss with him about going to 
work in the recovery department? 

A. Not that day. 

Q. He just told you that Lindley had no author- 
ity to fire you? 

A. He told me Mr. Lindley — he said he didn't 
have that much authority. 

Q. Did you tell him to put you to work? 

A. I told him I wanted to work somewhere; he 
said he was busy; he didn't have time to take the 
case up now, but later. I said, "OK; see you later." 

Q. What further happened? 

A. Next time I saw Mr. Stitt on a Sunday on 
or about — it must have been about the 11th of Sep- 
tember on a Sunday. But in the meantime I had 
gotten me a job with the Southern Pacific Railroad 
as master mechanic to come to Roseville Monday 
morning. So before I left I went up to Mr. Stitt 's 



vs. W. H. Townsend 71 

(Testimony of Willie Henry Townsend.) 
home on Sunday afternoon about one o'clock in his 
living room, and we discussed my history, you might 
say, in the pulp field and different things, and I left 
them that afternoon at five minutes to [44] four 
and caught the bus and went to Roseville, went to 
work for the Southern Pacific Railroad. The mas- 
ter mechanic sent me down to Sacramento in a 
month and a half and I worked as a boilermaker's 
helper in the roundhouse. 

Q. Before we go into that phase of it, you say 
you saw Mr. Stitt? 

A. I saw him on the 11th, Sunday, the 11th of 
September. 

Q. What was that conversation? 

A. I was just trying — general discussion where 
he had time to talk to me. On Saturday the third 
he didn't have time, so I went to his home. 

Q. Did you discuss with him whether you were 
going to go to work at the recovery plant? 

A. I discussed whether I was going to work in 
the pulp mill; I was assigned as a recovery operator 
because all my experience in the pulp industry was 
in that department and I had been told on the 15th 
of November, 1948, that that would be my assign- 
ment. 

Q. Mr. Lindley told you that? 

A. Yes, that's right. [45] 

* * * 

The Clerk: Plaintiff's Exhibit 5 in evidence. 
The Court: It will be admitted as Plaintiff's 
Exhibit No. 5. Do you make an objection, counsel? 



72 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
Mr. Holmes: Yes, on materiality. 
The Court: I will overrule the objection. 

(The letter referred to was thereupon marked 
Plaintiff's [47] Exhibit No. 5.) 



PLAINTIFF'S EXHIBIT No. 5 

February 1, 1944 
To Whom it may concern: 

This will introduce to you W. H. Townsend, who 
has been continuously in the employ of The North 
Carolina Pulp Company for the past six and one- 
half years. 

During construction Mr. Townsend acted as Fore- 
man in the erection of power and recovery units; 
later assuming the duties of Recovery Plant Fore- 
man and operating boilers using oil, coal and con- 
centrated sulphate liquors as fuel. 

During the past three years Mr. Townsend has 
served as Tour Foreman or General Foreman 
throughout the plant. 

Throughout his period of employment with our 
Company Mr. Townsend has proved himself to be 
an efficient supervisor as well as a reliable, com- 
petent workman. 

Yours truly, 

S. M. RASMUSON, 

Pulp Mill Supt., North 
Carolina Pulp Company. 
/s/ S. M. RASMUSON. 
SMR/km 

[Endorsed]: Filed October 11, 1950. 



v s. W. H. Townsend 73 

(Testimony of Willie Henry Townsend.) 

Q. (By Mr. Garry) : Mr. Townsend, at the 
noon recess I believe you testified that on your way 
to work on this railroad job that you had stopped 
to see Mr. Stitt at his home on a Sunday afternoon? 

A. Yes, sir. 

Q. On September 11, 1949? A. Yes, sir. 

Q. I'm not sure you covered the conversation, 
but will you cover the conversation that is germaine 
and pertinent to the lawsuit at hand? 

A. Well, my reason for seeing Mr. Stitt that day 
was trying to clear up the records about my being 
a troublemaker or anything else. I told Mr. Stitt — 
I tried to be honest and tell him the truth; I had 
some stuff there — that recommendation, for one 
thing — and went over my history in the pulp in- 
dustry and told him that I hoped sometime in the 
future that my case would be cleared up where I 
could come back to work, and I told him I was 
going to work for the S.P. ; I had worked for the 
Southern Pacific before, I had a good record with 
them. And it was just a general discussion about 
my character and conduct and different places I had 
worked at and the type of work that I had did. It 
was mostly that. Mr. Stitt promised me that he would 
investigate my case, which he did, and later on I 
talked with him again on a trip home. I used to 
come in every week end [48] from Sacramento; I 
worked a five-day week. I think it was on about 
the 13th of October that I had a talk with Mr. Stitt, 
and he told me that as far as he was concerned my 
application for employment was active at the San 



74 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
Joaquin Division; that Mr. Lindley did not have 
the authority to tell me I couldn't work there and 
if I would contact Mr. McCuish. I called Mr. Mc- 
Cuish on the telephone. 

Q. Just a minute, so that we will be able to 
follow this. You say this was on October 13? 

A. On or about October 13, yes, sir, that I called 
Mr. McCuish. 

Q. You talked with him after you talked with 
Mr. Stitt? 

A. The next night, yes, I called Mr. McCuish 
after I had talked to Mr. Stitt. 

Q. Where did you speak to Mr. Stitt? 

A. In Antioch. 

Q. Where? 

A. At the mill, at the San Joaquin mill. 

Q. By telephone? A. No, in person. 

Q. Did you go to his office? 

A. I went to his office. 

Q. You spoke to him there? A. Yes, sir. 

Q. What time of the day was that? 

A. It was afternoon, around between two and 
three o'clock. [49] 

Q. So you spoke to him, and what did he say 
to you? 

A. He told me that as far as he was concerned, 
I was active; Mr. McCuish was up in Oregon, and 
he said as soon as Mr. McCuish came back from a 
convention of some kind, he would speak to him. 
And then I think it was on about the same day 
that I called Mr. McCuish from the Travelers Hotel 



vs. W. H. Townsend 75 

(Testimony of Willie Henry Townsend.) 
on the telephone and told Mr. McCuish that Mr. 
Stitt said that I was eligible for work there; that 
I had had a talk with him, and I told Mr. Stitt all 
I wanted was just like they promised me, was a 
job, you know; I had my family out here and I 
liked Antioch, I liked California, I would like to 
stay there. So I told Mr. Stitt I was making $1.42 
and .6 an hour in Sacramento, but by the time I 
paid my expenses up there, my house rent and all 
in Antioch, I was actually making $25 a week. So 
I told Mr. McCuish, and Mr. McCuish said that 
Mr. Stitt had told him that I was active; he said 
he didn't have any openings at the present time. 

Q. But you spoke to Mr. Stitt in person in the 
afternoon ? A. Yes. 

Q. And he told you as far as he was concerned 
your employment was active? 

A. That's right. 

Q. He told you to talk to Mr. McCuish on a 
Sunday ? 

A. He said he would talk to Mr. McCuish. 

Q. Did you ever talk to Mr. McCuish [50] your- 
self? 

A. On the telephone from Sacramento, a few 
days later I called Mr. McCuish on the phone. 

Q. Where was Mr. McCuish? 

A. He was at his office at the mill, 1140 Antioch. 

Q. In other words, several days after October 
13th — you don't recall the date 

A. I don't recall the date. 

Q. You spoke to Mr. McCuish regarding the 



76 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
conversation that you had had with Mr. Stitt on 
the 13th day of October, 1949; is that right? 

A. Yes, sir. 

Q. What was the conversation that you had? 

A. Well, Mr. McCuish told me yes, that Mr. 
Stitt had saw him, but he said, "We don't have 
anything open right now, Townsend/' He says, "I 
will keep you in mind." I said, "Thank you, sir." 

Q. Was this after the recovery plant had 
opened ? 

A. It was along about the time that it was 
opening up. I was working in Sacramento. As I 
say, I don't recall the exact date, but the telephone 
record at the Travelers Hotel may give you the 
exact date. 

Q. It was on the 14th, according to the answer 
of the defendants, that the recovery plant opened. 

A. Well, I was working for the Southern Pa- 
cific at that time. 

Q. It was a few days after that that you talked 
to Mr. McCuish? [51] A. McCuish. 

Q. He told you you were on the active list? 

A. That's right. 

Q. And that they didn't have anything open for 
you right now? A. That's right. 

Q. Did you ever have any further conversation 
or any communications with him? 

A. No, sir. Oh, yes, every now and then I would 
see him when I could come on weekends ; I always 



vs. W. H. Townsend 77 

(Testimony of Willie Henry Townsend.) 

spoke; we have always been good friends; there 

ain't nobody fell out. 

Q. Did you ever write to him? 

A. Yes, I wrote Mr. Stitt a letter, and I also 
wrote the Antioch Division a letter, and I think 
that was around November; I don't remember the 
exact date — the 2nd of November or something like 
that. 

Q. I show you here a letter dated November 
2nd; is that a copy of the letter that you sent to 
Mr. Stitt? 

A. Yes, sir, that is a copy of the letter that I 

sent. 

* * * 

PLAINTIFF'S EXHIBIT No. 6 

Sacramento, California 
November 2, 1949 

Mr. Claude Stitt, Manager 
Fibreboard Products, Inc. 
San Joaquin Division 
Antioch, California 

Dear Sir: 

In regards to letters I received from Fibreboard 
Products, Inc. in September and October, 1948, 
offering me employment in new pulp mill and em- 
ployment in one of the company's other plants until 
such time as pulp mill began operation, I now re- 
quest that I be given employment as promised or 
reason why I am not given employment. 



78 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Hoping that we can reach a peaceful settlement 
in my case and avoid court procedure and antici- 
pating an early reply, I beg to remain, 

Respectfully yours, 

W. H. TOWNSEND, 
511 Third Street, 
Antioch, California. 

[Endorsed] : Filed October 11, 1950. 



The Clerk: Plaintiff's Exhibit 6 in [52] evi- 
dence. 

* * * 

Q. Did you receive a reply from Mr. Stitt? 

A. Yes, sir. 

Q. In reply to that letter (handing paper to 

witness)? [53] 

* * * 

The Clerk: Plaintiff's Exhibit No. 7 in evidence. 



vs. W. H. Totvnsend 79 

PLAINTIFF'S EXHIBIT No. 7 

Fibreboard Products Inc. 
San Francisco 

November 3, 1949 
San Joaquin Division 
P. O. Box CC 
Antioch, California 
Mr. W. H. Townsend, 
511 Third Street, 
Antioch, California. 

Subject: Inquiry as to Employment 

Dear Mr. Townsend : 

Relative to your letter of November 2nd, our 
records show that you were offered employment at 
the San Joaquin Division on Wednesday, August 
31, 1949, and that you saw fit to turn down the 
position offered. 

Yours very truly, 

FIBREBOARD PRODUCTS INC. 

San Joaquin Division 

/s/ C. M. STITT 
C. M. Stitt 

Plant Manager 
CMS-.ZR 

[Endorsed] : Filed October 11, 1950. 



Q. What if anything did you do when you re- 
ceived that letter from Mr. Stitt? 



80 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

A. After I received that letter from Mr. Stitt 
I came back to Antioch and I was told Mr. King, 
public relations officer, would meet with me on the 
16th of November at the old Antioch mill to take 
my case up. And on the 16th of November I [54] 
met with Mr. Clyde King, public relations manager 
for Fibreboard Products Inc., and Mr. Van Voorhis 
back there, and the new manager at that time was 
at the Antioch mill and he also sat in on the case. 
It was after the 16th of November meeting that 
Mr. King told me to give him a couple of weeks, 
he would study the case and see what he would be 
able to do with it. So it was along in December 
that I was notified that they would take no further 
action, and that is when I went to see Mr. Curt- 
wright, an attorney in Sacramento. 

Q. And filed this suit ? A. Yes, sir, I did. 

Q. Since October 14, 1949, have you been em- 
ployed at all? 

A. Well, I was — I was working with the South- 
ern Pacific Railroad on October 14, 1949, and I was 
laid off on February 7th when they cut reduction 
of forces at the roundhouse at Sacramento, and I 
was unemployed from February 7th, 1950, until 
August 8th, 1950. I didn't have any job of any 
kind other than I would — I lived next door to a 
funeral home, and if I would go with the ambulance 
or hearse and to pick up a body, I would make one 
dollar. 

Q. You mean if you picked up a stiff you would 
get a dollar for picking it up ? A. Yes. 



vs. W. H. Townsend 81 

(Testimony of Willie Henry Townsend.) 

Q. How many of those have you picked up? 

A. Three or four a month; I wouldn't always 
be lucky enough [55] to make the dollar. Some- 
times when his nephew would be there he would go 
out and save that dollar, and I would have to wait 
until the nephew was away. 

Q. How much did you earn at the Southern 
Pacific? 

A. $1.42 6/10ths, 40 hours a week. 

Q. How much money have you received, do you 
know, since October 14, 1949? 

A. We was paid twice a month; I got $108 one 
time, and $116 another; it ran from $108 — $224 a 
month. 

Q. How much did that amount to? 

A. I worked with them five months — a little 
better; I made $1,275. 

Q. $1,275? A. Yes. 

Q. From the Southern Pacific, is that right? 

A. I have got the exact amount right here in my 
pocket. Can you see that, Judge, on the bottom 

there? 

* •* * 

The Court: This has a figure $1,225.75. 

The Witness: That is what I made during my 
service with the S. P. Sacramento division; that is 
railroad retirement pay. [56] 

# * * 

Q. What have you been doing since August? 
A. Working at a service station for Mr. Bill 
Sullivan on Sixth and "B" Street. 



82 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. What do earn there? 

A. I get $55 a week and work 60 hours a week. 

Q. What is that — about ninety -cents an hour? 

A. Probably a little better than ninety cents. 

Q. Say ninety-five ? A. Yes, sir. 

Q. How much have you earned since you have 
been there % 

A. Well, I have worked regular since August 8th. 

Q. And how much have you earned? 

A. About $420; it has been two months. 

Mr. Holmes: That is a matter of mathematics, 
I think. 

Q. (By Mr. Garry) : Have you ever had a 
chance to talk to Mr. Stitt since your letter of 
November 2nd? 

A. Oh, yes, I have talked to Mr. Stitt on several 
occasions, both he and also talked with Mr. Lindley. 

Q. On the 3rd of September, 1949, when you 
saw Mr. Stitt, you testified this morning that he said 
that Lindley had no business firing you? 

A. That's right. [59] 

* * * 

Q. When he told you he had no authority to 
fire you — is that correct? A. Yes, sir. 

Q. Did you tell him that you had received a 
letter stating that you had refused a job on August 
31, 1949? 

A. I told him— told Mr. Stitt on the 3rd of Sep- 
tember that I didn't refuse no job; I said Mr. Bob 
Puller told me he had a job as broke baler, I could 



vs. W. H. Townsend 83 

(Testimony of Willie Henry Townsend.) 
have it ; that as soon as I told him Mr. Lindley had 
told me previous to that time there would be no 
employment coming he said there was a misconcep- 
tion; he said, " Under them conditions I will get 
somebody for the job." He says, "They told me you 
didn't have any job." I says, "I am working for 
Mr. Van Voorhis and Mr. Walcott making $1.54 an 
hour. As far as I know, I can continue on." 

Q. Did you talk that way to Mr. Stittl 

A. Yes. [60] 

Q. On September 3rd? A. Yes, sir. 

Q. You received a letter on November 3rd from 
Mr. Stitt pointing out to you, in response to your 
letter of November 2nd, "Our records show that 
you were offered employment at the San Joaquin 
Division on Wednesday, August 31, 1949, and that 
you saw fit to turn down the position offered." 
Did you talk to Mr. Stitt and tell him what they 
had offered ?. A. Yes, sir. 

Q. What did you tell him? 

A. I told him that Mr. Walcott told me on a 
Wednesday to report to Mr. McCuish's office at five 
minutes to one. 

Q. Now you are not following me, Mr. Town- 
send. A. I am sorry. 

Q. When you received that letter of November 
3 from Mr. Stitt telling you that you had turned 
down a job on August 31st, did you ever talk to 
Mr. Stitt after that? A. Yes, sir. 

Q. What did you tell him? 

A. Well, I didn't go into the details about the 



84 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
answer to that letter, because I had already told 
him on the 3rd day of September that that wasn't so 
and asked him to bring Mr. Fuller and Mr. Lind- 
ley in from the plant into his office, and he refused 
to do so. 

Q. On the 3rd day of September? [61] 

A. That is correct. 

Q. He refused to do that? 

A. That is right. 

Q. Then have you actually talked to him since 
November 3rd? 

A. Yes, I have talked to him on several occa- 
sions, but I never mentioned that particular part 
of the situation. I have talked to him about getting 
an exoneration and going to work in a recovery 
department like I was promised. But Mr. Stitt 
since that time isn't manager now; he is in the 
engineering department out of the San Joaquin 
Division, and my case has been, you might say, in 
status quo since Mr. 

Q. Who was it that told you that? Who was it 
that referred this matter to Mr. King ? 

A. Well, I had one — when I was first discharged 
at the Antioch mill I called Mr. King. I tried to 
take up after I talked to Mr. Stitt and he wouldn't 
do anything. I tried to take it up with him trying 
to settle it in an amicable way and win an exonera- 
tion for myself, because I had been accused. They 
said I was being let out due to rumors, and I was 
making an honest effort to find out what the rumors 



vs. W. H. Townsend 85 

(Testimony of Willie Henry Townsend.) 

were, because I have always tried to treat other 

people like I would be treated myself. 

Q. Who told you you were being let out for 
rumors'? A. Mr. Lindley. 

Q. When did he tell you that 4 ? [62] 

* * * 

A. It was Sunday, August 28th. 

Q. Sunday, August 28th? 

A. At the same time he also asked me why I 
wrote a banker in Plymouth. And I said, "Mr. 
Lindley, I wrote that banker because you told me 
over the telephone that you were hearing a lot of 
stories about me, and I was just writing that banker 
in Plymouth, North Carolina, to let Mr. Stitt and 
you know what my character was the nine years 
I lived in Plymouth, North Carolina, both myself 
and my family." 

Q. Mr. Stitt never told you that they didn't want 
you because of any A. He never 

Q. Just wait until I finish my question, Mr. 
Townsend. Mr. Stitt never told you that they were 
letting you out, didn't want you, because of rumors? 

A. No, sir. [63] 

Q. Mr. Stitt never told you at. any time that they 
didn't want you, except this communication you re- 
ceived on November 3? A. That is right. 



86 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Cross-Examination 
By Mr. Holmes : 

Q. Mr. Townsend, you worked for a pulp mill 
from about 1928 to 1935, didn't you? 

A. Yes, sir. 

Q. What was that mill? 

A. Gulf States Paper Company, Tuscaloosa, 
Alabama. 

Q. Then there was some difficutly at the time you 
left, was there not, some dispute between you and 
your employer? 

A. No, sir, not between me and my employer, 
no, sir. 

Q. You left there? 

A. A man told me to kiss his ass, and I knocked 
him down. Where I come from, they don't kiss 
asses. 

Q. You left the job hurriedly? [64] 

A. No, sir, I didn't leave the job in a hurry. 
I stayed there and finished out my shift, then I 
quit. 

Q. You had had some fight on the job with that 
man? 

A. There was no fight, I just knocked the man 
down. He never did get up or there would have 
been a fight. It takes two people to fight; there 
wasn't but one. 

Q. Then for a couple of years you drove taxicabs, 
didn't you? A. That's right. 

Q. Before you went into a pulp mill again? 



v s. W. H. Townsend 87 

(Testimony of Willie Henry Townsend.) 

A. I went with the North Carolina Pulp in 
1937. 

Q. You drove taxicabs for a couple of years, 
though, did you 1 A. Yes. 

Q. Between the two pulp mill jobs, is that rights 

A. I drove taxicabs and worked on the river, 
yes. 

Q. Then you went to work for the North Caro- 
lina Pulp and Paper Company from about June, 
1937, until about A. April 14 

Q. April, 1945? A. April, 14, 1945. 

Q. And then there was some difficulty between 
you and your employer at that time and you left; 
isn't that true? 

A. I organized the salaried foremen, and I was 
called in and told that my services was ended. 

Q. There was some little dispute between you 
and your employer and then you left ! [65] 

A. I was let out for organizing the salaried fore- 
men, the first group of salaried foremen ever or- 
ganized in the paper industry. 

Q. Then from April, 1945, on you didn't work 
in a pulp mill any more at all ? 

A. I worked almost two years of that time as 
field representative of the pulp and paper mill 
union. 

Q. You worked for two or three unions in that 
period, didn't you? 

A. Yes, sir, but they was all representing the 
paper industry. , 



88 Fiireboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. Then you worked for a couple of railroads, 
didn't you? 

A. Burlington and Southern Pacific. 

Q. And you also drove cab for a while during 
that period, didn't you? A. That's right. 

Q. And you had eight or ten jobs between 1945 
and 1948, didn't you? 

A. I about six, yes, sir. 

Q. You had two railroad jobs, three union jobs 
— that is five — and how many cab jobs did you 
have % A. One. 

Q. Did you have any other jobs during that 
period? A. Otis Elevator. 

Q. Otis Elevator? 

A. Bagbee Elevator and Electric. [66] 

Q. Bagbee Elevator and Electric. That makes 
seven or eight jobs, is that right, during that period? 

A. That is right. 

Q. And you had not been in a pulp mill as a 
worker since the early spring of 1945, is that true? 

A. Since 1940 as a worker; I was foreman from 
1940 to 1945. 

Q. You had been there as a foreman up to 
April 14, 1945? A. That is right. 

Q. After that you weren't in a pulp mill at all 
working? A. No, sir. 

Q. Then you got a job with this elevator com- 
pany in the month of August, 1948 ? 

A. That's right; I quit Bagbee and went over 
to it. 



v s. W. H. Townsend 89 

(Testimony of Willie Henry Townsend.) 

Q. And that was to help install about three ele- 
vators, wasn't it? 

A. Well, I helped install three elevators with 
them. 

Q. Yes; but you were employed 

A. If I hadn't come off there, I would probably 
still be helping them; maybe I may have been sus- 
pended. 

Q. What were the terms of your employment 
with Otis Elevator? 

A. $1,581/2 an hour and full time for all over- 
time. 

Q. Was there any guaranty as to how long you 
would work? 

A. The man I was working with had been with 
them eight years, and he said I could work with 
him right along. 

Q. He, however, came from another state? [67] 

A. He was from North Carolina. 

Q. He came to install three elevators ? 

A. He goes all over. 

Q. He was sent down to install an elevator at 
the university and one at the hospital? 

A. Two at the hospital, and at the president's 
home at the University of Alabama. 

Q. That job was just about completed when 
you left Alabama, wasn't it? 

A. Yes, sir, but he went on another one. 

Q. In Tuscaloosa ? 

A. No, sir, I think the next one was in North 
Carolina. 



90 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. Then the job at Tuscaloosa, Alabama, was 
just about up, wasn't it? A. That's right. 

Q. In addition to these other letters which you 
have identified that were written in 1948 you wrote 
this letter of September 7th, didn't you? 

A. That's right; I wrote that from Tuscaloosa, 
Alabama. 

Q. And you filled out an application blank and 
sent it with this letter? A. Yes, sir. 

Q. Is this the application blank (showing) ? 

A. That's right, that's right. [68] 

* * * 

The Clerk: Defendant's Exhibit A in evidence. 



DEPENDANT'S EXHIBIT A 

Tuscaloosa, Ala. 
Sept. 7, 1948 
Mr. C. M. Stitt, 
Plant Manager, 
Fibreboard Products, Inc., 
Antioch, Cal. 

Dear Sir: 

Have just rec'd your letter of Sept. 1st with 
application blank. Appreciate your letter very much 
and hope to have the pleasure of meeting personally 
with both you and Mr. T. Lindley, your pulp mill 
supt., in the near future. Saying again to you both 
that I will appreciate any job you people have to 
offer me and assure you that you will have a steady 
worker and one that will be with you for many years 



vs. W. H. Townsend 91 

(Testimony of Willie Henry Townsend.) 
to come. Will close with best regards and hoping to 
hear from you people again in the near future. I 
can report for work on one week's notice. 

Yours truly, 

W. H. TOWNSEND, 

Apt. 23A Druid Gardens, 
Tuscaloosa, Ala. 

Received September 10, 1948. 
[Endorsed] : Piled October 11, 1950. 



Q. (By Mr. Holmes) : This is your signature 
on this application blank, isn't it? 

A. Yes, sir. 

Mr. Holmes: I will offer next the application 
blank [69] dated September 7, 1948, signed W. H. 
Townsend. 

Q. With respect to this application blank, Mr. 
Townsend, there is a line that asks "Were you 
ever asked to resign?" And the word "No" written 
in there. Did you wirte that in there? 

A. I was never asked to resign. 

Q. Did you write in the word "No"? 

A. That is right. 

* * * 

Q. (By Mr. Holmes) : On the reverse side 
of this application blank under "Previous em- 
ployments" it lists some of your previous employ- 
ers, does it not? A. That's right. 



92 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. Those are some of the employers that you 
have already mentioned in your testimony, is that 
right? A. Yes, sir. 

Mr. Holmes : I will offer this application blank. 
There are some matters on it which I think Mr. 
Townsend didn't put on. For instance, the short- 
hand at the top of the page; you didn't put that 
on? [70] A. No, sir; I can't write shorthand. 

Q. And the red mark under "Recovery room"? 

A. No. 

Q. And the matters in pencil on the reverse side 
which have been crossed out; you didn't write those 
on, did you? A. No, sir, I didn't. 

* * # 

The Clerk: Defendant's exhibit B in evidence. 



IT 



MB 






EMPLOYMENT DEPARTM«3«T FIBRtBOARD PRODUCTS INC. 

/ / tk> V i ll tJ 1 -> npltc * tl <> n Blank 

\^J^__ Exhibit No.... J^ 5£P 

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T™ <rh£ 7 ' /fc/ * 

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SocUl Security Ko'J i /JLJl" M P^' j£S£* , ^ _- 

,5 3 A /WuJg tf^sW city and State ;JU**HC^U^ . 4*A 

Where we« you borni - "^ # ^ L £/£*. Ite*. „, W *h 8 4*v4l 

Afl«y ..*....* Sexv< 



Approved by 
Division 
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Department 
Poaition 




Nationality 



♦^ City and State i 

^IvA. Date of birth; 

fcrrviAASC^*-* Heights^ 4^Q "X/WclgbU ASViS" 



of work de*1redj/S«*^ .>«*?. •* r *^ . * How mu 




much experience have you haddn this work ? 



What othac lines qf-»ork does your experience include? ../^ 





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( 

Are you married or single? {fJUMY^p Divorced' Widow' Widower^ . ,2 

How many depend *n you for support ? J>»*^V What salary would you be willing to accept ! LA. \^M *J> * y\ J** f 

SUte number of children, if any. and ^JbdUL b+ylb** <X*4» I5~ I 7" /fl 

Do%ou live with your parents' Relatives' Weep hou** •- pf* Board' Self-supporting " 

Were you evar asked to resign? f^Q If so. for what cause ' 

Are you employed at present ? ■&*• Employer's name and address » 0*** CAUt****- LO^ f\ . «*• U*H- »T 
Pr^t«lary? # /^/^7^ Why do you wUh to change ' W^ A £S*ffi- A *W fW^** 

•ft'Jou have previoualyb^lmployed btffle Fibreboisll ProducU Inc . or its su*Ah.nes. give dal 



How far did you go through school 

Qtve name • at* locations of schooU or collegeWrom which you graduated 



scboo.W^ MM. 



CspfcXASr ^AA^" A l>ate oL leaving school >*^<W 

m« • ansl locations of schools or collegeWrom which you graduated /M. ^4/j^^ /&C***** 



Wiut educaUonal courses are you nov. taking. If any 



Applicant'* signal i 
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94 



PREVIOUS EMPLOYMENT 



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vs. W. H. Townsend 95 

(Testimony of Willie Henry Townsend.) 

Q. (By Mr. Holmes) : At the time you talked 
to Mr. Lindley in your first telephone conversation 
when you called him from Tuscaloosa, Alabama, on 
Tuesday, October 18th, was there anything said 
about the length of time you would be employed? 

A. Yes, sir. 

Q. What was said? 

A. I w r anted to know if I could depend on it 
to be a permanent job. 

Q. And what did he say? 

A. He said yes. [71] 

Q. Now, at the time this action was filed you 
verified a complaint, didn't you? I show you a 
copy of the first complaint that was filed in this 
case; it indicates that it was sworn to by you; isn't 
that right? A. Yes, sir. 

Q. And in the third paragraph of that com- 
plaint 

Mr. Garry: Just a minute, counsel. What are 
you referring to now? 

Mr. Holmes: The third paragraph of the origi- 
nal complaint, on lines 11 and 12: "that the de- 
fendant should employ this plaintiff as such re- 
covery operator for an indefinite time" — lines 11 
and 12. 

A. There was nothing said about recovery opera- 
tor until the 15th of November when I arrived at 
the San Joaquin plant. 

* * * 

The Court: Counsel has a right to conduct [72] 



96 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

his cross-examination. The thing counsel wants to 

know if you verified that complaint. 

A. I verified the complaint, yes, sir, but 

The Court: That is argument, Mr. Townsend, 
and your counsel is competent to make it. 

Q. (By Mr. Holmes) : When did Mr. Lindley 
say anything to you about the job as recovery op- 
erator? A. On the 15th of November. 

Q. He didn't say anything about the recovery 
operator's job in your telephone conversation? 

A. No, sir; he told me Mr. Stitt had given him 
my recommendation from the North Carolina Pulp 
Company and my application for employment and 
it seemed I was an experienced Kraft pulp mill 
man. 

Q. He didn't promise you any particular job 
at all? A. That's right. 

Q. You didn't know what it would be? 

A. Presumably it would be a tour foreman's 
job. That was the last job I had. 

Q. Which was what yon applied for? 

A. Yes, sir. 

Q. That is what you wanted? 

A. That is what I wanted. 

Q. He didn't promise you that or any other job 
on October 18th? [73] 

A. No, sir; he just told me if I would come 
down they w T ould place me in one of the other mills 
until such time, and that I could work in that until 
it was open, and I could stay here and the com- 



vs. W. H. Townsend 97 

(Testimony of Willie Henry Townsend.) 

pany would help me buy a home if I wasn't able 

to buy one. 

Q. After that you did come out and did take 
a temporary job in that other mill? 

A. Yes, on his promise, he told me 

Q. You did work temporarily in the other mill, 
and you understood that you would be employed 
there until a place was found for you in the San 
Joaquin Division; is that your understanding? 

A. Yes. 

Q. Then when a position was offered you in the 
San Joaquin Division you turned it down because 
you said you already had a position? 

A. There has been no position offered at the 
San Joaquin other than as I have said, Mr. Bob 
says, "I have got a job on the broke baler.' ' I 
said, "Mr. Bob, I am working for Mr. Van Voorhis 
and Mr. Wolcott for $1.54." He says, "They told 
me you wasn't working at all." Mr. Bob Fuller 
withdrew the offer as soon as I told him the truth 
about it. 

Q. Now, in the first amended complaint, para- 
graph 3 on lines 13 and 14, it reads: 

"that the defendants should employ this 
plaintiff as such recovery operator for so long 
as plaintiff [74] should be desired to be so 
employed and for so long as plaintiff's work 
should be satisfactory." 

A. That's right. 

Q. Did you understand that to be the terms of 
your employment? 



98 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

A. Well, that is, most companies have that pol- 
icy, as long as a man's work is satisfactory his 
employment continues, and when a worker's work 
gets unsatisfactory, they are generally called in on 
the carpet and either laid off or reprimanded. 

Q. But the other part of it, that you could work 
as long as you desired to be employed; is that your 
understanding of the contract also'? 

A. Well, I was told that I would have a re- 
covery operator's job, and I knew if I went to work 
as a recovery operator I had to produce in order 
to remain on the job. [75] 

« * * 

The Court : Would you read it again I 

(The reporter read the question.) 

A. Yes, sir. 

The Court: Now, if you have any explanation 
you want to make to that, go ahead. 

A. Well, when I say "Yes, sir" I figured I 
would work — -I never missed a day's work in my 
experience in the pulp mill. My record with the 
other people would show I was on the job with the 
Gulf States Paper Company from 1928 to 1936 and 
from June, 1937, to April, 1945, with the North 
Carolina Pulp Company, and never missed one 
day. I told Mr. Stitt in my application for employ- 
ment out here that I had a wife and three daugh- 
ters; I was seeking permanent employment. I told 
Mr. Lindley when I talked with him on the 18th 
of October that I appreciated hearing from Mr. 



vs. W. H. Townsend 99 

(Testimony of Willie Henry Townsend.) 
Stitt, and I would appreciate very much coming 
to California to work with those people; that Mr. 
Stitt had told me that he would be on the job; how- 
ever, before making actual commitments. He said, 
"Mr. Stitt, give me the application." He said, "I 
got your copy of recommendation from the North 
Carolina Pulp Company." He said, "You seem 
like you are capable or like you are the kind of 
man we are looking for. We can put you on tem- 
porarily in one of our other plants until the pulp 
mill is open. We expect to be going some time 
around [76] 

Q. When was this said to you? 

A. That was in the telephone conversation the 
18th of October. 

Q. But you understood that you could quit the 
job any time you wanted to*? 

A. Well, in America we can all do that, yes, sir. 

Q. You weren't bound for any particular length 
of time, were you f 

A. No, sir, I never did go to work out there. 

Q. I am talking about your understanding of 
the contract you had. You understood, Mr. Town- 
send, if you went to work pursuant to this what 
you believed to be a contract, you could quit any 
time you wanted; isn't that true? 

A. That is true. 

Q. And you weren't bound to work for any par- 
ticular length of time even if you did take the 
work ; isn 't that right ? 

A. That is true, yes. 



100 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. When was the first time you talked to any- 
body about transportation money? 

A. The 14th of August, 1949. 

Q. You didn't talk to anybody about it before 
that ? A. No, sir. 

Q. The subject hadn't been mentioned before 
that? 

A. Nothing, only on the telephone conversation 
Mr. Lindley [77] asked me if I had enough money 
to get out here, I told him yes, sir. He said it 
would be refunded. 

Q. Between that instance and October 14th there 
was never any mention of it, is that right ? 

A. Never mentioned, no, sir. 

Q. The only person you talked to then after 
you came to California was Mr. Stitt, with respect 
to this subject? A. That is correct. 

Q. Is that right? A. Yes. 

Q. And in the course of your telephone conver- 
sation with Mr. Lindley you say he mentioned that 
he had your application? A. Yes, sir. 

Q. Did he mention any of the references on that 
application? A. No, sir. 

Q. Do you remember him telling you that the 
company investigated people before it hired them? 

A. No, sir. 

Q. Do you remember him telling you that he had 
many applications and that he would, in the course 
of his work, investigate you and the others also ? 

A. No, sir. 

Q. And do you remember him telling you that 



vs. W. H. Townsend 101 

(Testimony of Willie Henry Townsend.) 

he had to choose the men for his crew on the basis 

of their qualifications ? A. No, sir. [78] 

Q. Do you remember him telling you that he 
would determine the qualifications of men by their 
work history or by recommendations or by investi- 
gation through previous employers ? 

A. He said that the recommendation that he had 
there seemed to show that I was a capable Kraft 
pulp mill man. He made that remark. 

Q. Did he say anything about investigating with 
other employers 1 A. No, sir. 

Q. You don't remember anything of that sort 
at all? A. No, sir. 

Q. Is that right? A. No, sir. 

Q. Why did you tell him you were going to ar- 
rive on the 15th of November ? 

A. Because I had quit my job on the 7th; I 
had told Mr. Utley the 7th would be my last day, 
and I figured arriving there on the 14th of Novem- 
ber. I was going to leave the 8th or 9th. 

Q. You had made those arrangements before 
you talked to Mr. Lindley, is that right? 

A. I made those arrangements after the tele- 
phone conversation with Mr. Lindley, I quit my job. 

Q. Just a minute; I don't think you understood 
the question. You testified that you told Mr. Lind- 
ley that you would be in California on the 15th of 
November. [79] A. That's right, yes. 

Q. Why did you tell him you would get there 
on that day? 

A. Because I was going to work out a notice. 



102 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

Q. You were just going to leave a job, is that 
right ? 

A. No, I wasn't going to leave the man without 
another man to help him. 

Q. You weren't going to come until you got 
someone- to replace you ? 

A. That was approximately from the 18th of 
October to the 15th of November. 

Q. But you left 

A. The 9th of November I left Tuscaloosa, 
Alabama at 6 :45. 

Q. I w 7 ant to know what the significance was 
of your telling him you would be here on Novem- 
ber 15th. 

A. Knowing that that is the last day of the 
first half of the month, if they pay off then, if I 
was there on the 15th and went to work I would 
get in half a month's pay with Fibreboard in the 
month of November, 1948. 

Q. That was the only reason you told him you 
would be there on the 15th? 

A. That was the only reason, with the excep- 
tion when you are moving to a new place, if a 
man gets there he has got to find a suitable place 
for his family to live; you must have a chance to 
pick out a home and a place to stay; you try to 
get about eight hours' sleep so you can do eight 
hour's honest [80] work. 

Q. Was this conversation you had with Mr. 
Lindley after you arrived in California — you had 



vs. W. H. Townsend 103 

(Testimony of Willie Henry Townsend.) 

two conversations, didn't you, within a very short 

time? 

A. I had a conversation on the 15th day of 
November. 

Q. Then you talked to him again a day or two 
later, did you? 

A. I talked with Mr. — I talked with Mr. Mc- 
Cuish. He is the man that told me to go down to 
the Antioch division of the Fibreboard and report 
to the personnel man, Mr. Boyd. 

Q. That isn't answering my question. I want 
to know if you talked to Mr. Lindley twice right 
after you came to California. 

A. Not that I know of; no, sir; I talked to him 
on the 15th of November. 

Q. Did you talk to him just once in the first 
week or so that you were in California? 

A. Yes, sir. 

Q. Is that the conversation that took place there 
at the mill? A. Yes, sir. 

Q. In the course of that conversation do you 
recall Mr. Lindley telling you that he hadn't made 
any investigation of you? 

A. No, sir, he didn't tell me that. 

Q. Do you remember him telling you that they 
didn't hire people over the telephone? [81] 

A. He didn't tell me that, no, sir. 

Q. Do you remember him telling you that they 
had to interview people before they hired them? 

A. No, sir. 

Q. Do you remember him telling you that he 



104 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

intended to correspond with the references you had 

given to former employers'? A. No, sir. 

Q. You don't recall him telling you that? 

A. No, sir. 

Q. Do you recall him telling you that the mill 
wouldn't be opened until the following March or 
later? 

A. He didn't know when it would be opened. 

Q. Did he tell you it would not be open before 
March? 

A. He told me that he didn't know exactly 
when, but he would place me in the Antioch mill 
until such time as he could use me there. 

Q. Do you remember him telling you that he 
was investigating other applicants for employment 
also? 

A. No, sir, he didn't tell me that. 

Q. You don't remember that at all? 

A. No, sir. [82] 

# * * 

Q. (By Mr. Holmes) : Mr. Townsend, do you 
recall in your conversation with Mr. Stitt on or 
about the 3rd of September talking to him about 
the offer of a job by Mr. Fuller? 

A. Yes, sir. 

Q. Do you remember telling Mr. Stitt that you 
couldn't refuse a job because you already had one? 

A. I told Mr. Stitt that Mr.— I says, "Mr. 
Fuller told me that he would give me a job as a 
male operator; but as soon as I told Mr. Bob 
Fuller that I was working at the old mill for $1.54, 



vs. W. H. Townsend 105 

(Testimony of Willie Henry Townsend.) 
he withdraw it." I asked Mr. Stitt to bring Mr. 
Fuller into his office to verify it, and he refused 
to bring Mr. Fuller in. 

Q. Didn't you tell Mr. Stitt that you couldn't 
refuse a job because you already had one? Do you 
remember telling him that ? 

A. I told him that I told Mr. Fuller as I 
already said, and as soon as I told Mr. Taylor he 
withdrew the offer of the broke baler job operator. 
I told Mr. Stitt that, yes, sir. 

Q. You talked to Mr. McCuish after you talked 
to Mr. Fuller, didn't you? A. Yes, sir. 

Q. On your way out of the plant ? 

A. Yes, sir. [83] 

Q. About the 31st of August ? A. Yes, sir. 

Q. Wednesday? A. Yes, sir. 

Q. Do you remember telling Mr. McCuish that 
Mr. Fuller had offered you a job but that you had 
told him that you couldn't take a job when you 
already had one that paid you more money? 

A. No ; I told Mr. McCuish the same thing that I 
told Mr. Claude Stitt the following Saturday. 

Q. Just a monent. You don't recall telling Mr. 
McCuish the statement that I have just read to you ? 

A. No, sir. 

Q. You don't recall making that statement? 

A. Yes, sir; I told him that Mr. Fuller was 
going to hire Fisher for the broke baler job. 

Q. You told him he was going to hire Fisher? 

A. Yes, sir; he was coming out there to see him 



106 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

about hiring him. Mr. McCuish is the man that 

does the hiring. 

Q. Didn't you ask Mr. McCuish to hire Mr. 
Fisher? 

A. Yes, I asked him, and Mr. Lindley, too, on 
February 8th — I had asked Mr. Lindley to give him 
a chance for the job. 

Q. Let's stick to this conversation with Mr. 
McCuish on or about the 31st of August. You asked 
Mr. McCuish to give Mr. Fisher that broke baler 
job, didn't you? 

A. I told Mr. McCuish that Mr. Fuller said he 
was coming [84] out to ask him to put Mr. Fisher 
on at eleven o'clock that night. 

* * * 

A. No, sir, I didn't tell him that. 

Q. (By Mr. Holmes) : Fisher was your brother- 
in-law? A. That is correct. 

Q. Living with you? 

A. He is my wife's oldest brother. 

Q. And he was out of a job and he was living 
with you? A. That is correct. 

Q. You were trying to get him a job ? 

A. Yes, sir, and had been since February 8th. 

Q. When you refused this job with Mr. Fuller 
you tried to get Mr. Fisher the job, is that right? 

A. No, I didn't refuse the job with Mr. Fuller. 

Q. You didn't take the job, did you? 

A. I wasn't offered the job. I was offered it 
and then was withdrawn as soon as I told him I 



vs. W. H. Townsend 107 

(Testimony of Willie Henry Townsend.) 
was employed. That is the reason he was going to 
ask Mr. McCuish to give Fisher the job, because 
there was a vacancy there. [85] 

Q. Immediately after discussing the matter with 
Puller, you did ask Fuller to give Fisher the job? 

A. That's right. 

Q. Then you went out and told Mr. McCuish you 
wanted Fisher to have the job? 

A. No, sir, I didn't tell him that. 

Q. I believe you have identified a couple of 
letters that you wrote to Mr. Stitt and that Mr. 
Stitt wrote to you in the early part of November 
of 1949; is that right? A. Yes, sir. 

Q. About that time you wrote letters to the 
Antioch division also, didn't you? 

A. Yes, sir. 

Q. I will show you a copy of a letter that pur- 
ports to be addressed to Mr. William W. Van 
Voorhis, signed by yourself, and ask you if it is a 
copy of your letter ? A. That is correct. 

Q. You got a reply, didn't you, from Mr. Van 
Voorhis? A. Yes, sir. 

Q. Is this the reply (showing) ? 

A. That is correct. [86] 

* * * 

The Clerk: Defendant's exhibit C in evidence. 

*■ * * 

The Clerk: Defendant's exhibit D in evidence. 

* * ■* 

Q. (By Mr. Holmes) : Mr. Townsend, do you 



108 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

remember in your conversation with Mr. Stitt at his 

home that you told him 



The Witness : September 11th. 

Q. (By Mr. Holmes) : That is when you went 
and spent the whole afternoon before you went up 
to Sacramento? A. Yes, sir. 

Q. You were there about three hours? [88] 

A. Prom ten minutes past one until five until 
four. 

Q. You talked to him for about three hours'? 

A. Yes, sir. 

Q. Do you remember in the course of that -con- 
versation talking about this job offered by Puller 
and telling Mr. Stitt "I was offered a job but 1 
didn't refuse one"? Did you remember telling him 
that? 

A. I told him the same thing that I told him 
on the third day of September. I told him that as 
soon as Mr. Fuller found out that I was not un- 
employed he withdrew the offer. So therefore I 
didn't have to refuse the job or I didn't have an 
opportunity to accept or refuse. The job was 
offered to me, and as soon as I told the truth he said, 
"There is a misconception." He says, "I will get 
somebody else for the job." This is when I men- 
tioned Fisher's name. 

Q. Do you remember telling Mr. Stitt that the 
reason you turned down the job with Fuller was 
that you were working at Antioch? 



vs. W. H. Townsend 109 

(Testimony of Willie Henry Townsend.) 
A. No, sir. 
Mr. Holmes : That is all. 

Redirect Examination 
By Mr. Garry: 

Q. Mr. Townsend, Mr. Holmes asked you a 
question as to what you understood the contract 
conversation you had on the telephone on October 
18, 1948, to mean. I believe you testified that there 
was a position he said that [89] you were promised ; 
isn't that correct? A. That is correct. 

Q. What position did you understand him to 
mean? 

A. Well, from — I made application for a night 
superintendent's job, tour foreman's job; that is, 
shift foreman throughout the pulp mill. 

Q. This application you talk about is the applica- 
tion that was introduced as Defendant's Exhibit B? 

A. Yes. 

Q. And I show you under date of September 7, 
1948, that application; is that correct? 

A. Yes, sir. It says, "Kind of work desired: 
Pulp mill tour foreman." 

Q. And that is the postion that you understood 
that you were being employed for, is that correct? 

A. Yes, sir. 

Mr. Holmes: That is objected to as calling for 
the subjective conclusion of this witness. [90] 

* * * 

The Court: Well, as to what his understanding 



110 Fibreioard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 
was, I agree with you; the objection is good. Sus- 
tained, in so far as what understanding he had 
over the telephone. What discussion they had is 
perfectly material. 

Q. (By Mr. Garry) : What understanding did 
you have as to the postion that you were being 
offered over the telephone, Mr. Townsend? 

A. He said my application was before him and 
that Mr. Stitt [91] had also given him a copy of 
this recommendation from the North Carolina Pulp 
Company, and that my reference of the North Caro- 
lina Pulp Company proved that I was a capable 
Kraft pulp mill man and that they were looking 
for eligible men, so that my application was ac- 
cepted, and that they would place me in one of the 
other mills until such time as the pulp mill started. 
I had made application for pulp mill tour foreman's 
job, so that was the natural consideration in my 
mind that I was 

The Court: Just a moment; I am not interested 
in what you were thinking ; I am interested in what 
was said. 

A. He said my application was accepted, and my 
application was for a Kraft pulp millman. 

The Court: That was when you were talking in 
the telephone conversation? A. Yes, sir. 

Q. (By Mr. Garry) : In that conversation did 
you ask him anything in reference to time 

A. I asked him about the housing situation. I 
asked him would the job be permanent. And he 
said yes, I could consider it to be a permanent job. 



v s. W. H. Townsend 111 

(Testimony of Willie Henry Townsend.) 
I told him the reason why I wanted it was I wanted 
to bring my family with me when I came. And 
he said I could consider it to be a permanent job, 
and that if I wasn't able to buy a house the com- 
pany would help me buy a house. [92] 

Q. Now, Mr. Townsend, this job that we are 
talking about that Mr. Puller told you about on 
August 31, 1949, where was this so-called job? 

A. That was in the paper mill, different from the 
Kraft mill. 

Q. Had you ever had any experience in print 
paper, working in a paper mill? A. No, sir. 

Q. I didn't get that answer. 

A. No, sir, I have never worked in a paper mill. 

Q. What has been your service? 

A. Always in a Kraft pulp mill. [93] 

* * * 

Recross-Examination 
By Mr. Holmes : 

Q. Mr. Townsend, you went over to the San [94] 
Joaquin plant to work there for a short time, didn't 
you, the last week in July and the first week in 
August in 1949 ? 

A. I went there the 4th day of August and 
worked until the 14th day of August as a janitor 
and cleanup man. 

Q. You worked on the broke baler during that 
period of time, did you? 

A. I helped the man on the broke baler. I helped 



112 Fibreboard Products, Inc., etc. 

(Testimony of Willie Henry Townsend.) 

the broke baler operator drag the broke up from 

underneath the baler machine. 

Q. Operating the broke baler was something 
which you had seen many times, wasn't it? 

A. I had saw that done since 1928 but I never 
had did it. 

Q. You hadn't done it until this period in Au- 
gust, is that right? A. That is correct. 

Q. Did you have any complaints about your work 
on that broke baler in August when you were there f 

A. No, sir. 

Q. You were competent to do that, weren't you? 

A. Yes, sir. 

Mr. Holmes : That is all. 

Q. (By Mr. Garry) : What were you getting 
paid when you were working at that? 

A. $1.42 and % cents. [95] 

* * * 

THOMAS M. LINDLEY 

called as a witness on behalf of the defendant, 
sworn. 

The Clerk: Will you state your name to the 
Court, please? 
A. Thomas Marion Lindley. [97] 

Direct Examination 
By Mr. Holmes : 

Q. Do you reside at Antioch, California, Mr. 
Lindley? A. Yes. 

Q. You are employed by Fibreboard Products, 
Inc. ? A. Yes. 



vs. "FT. H. Townsend 113 

(Testimony of Thomas M. Lindley.) 

Q. Were you employed by Fibreboard between 
the period of September, 1948, and September, 1949 ? 

A. Yes. 

Q. And in what capacity? 

A. Superintendent of the pulp mill. 

Q. What do you mean by the pulp mill ? 

A. The pulp mill is the part of a plant where 
the wood is brought in and cooked up into pulp for 
the making of paper. 

Q. Is that one department of the plant? 

A. That is one department. 

Q. Are there other departments? A. Yes. 

Q. What other departments? 

A. Two other departments, the paper mill and 
what we term the wood room. 

Q. Are they all in the same building? 

A. The paper mill and the pulp mill are all in 
the same building and the wood mill is in a different 
structure. 

Q. You are superintendent of the pulp mill, is 
that correct? [98] A. Yes. 

Q. On or about the 18th of October, 1948, do 
remember having a conversation with Mr. Willie 
H. Townsend? A. Yes. 

Q. Did he call you or did you call him? 

A. He called the plant and asked to speak to me. 

Q. And did you talk to him? A. Yes. 

Q. Do you remember the conversation? 

A. Yes. 

Q. About how long did it take? 

A. Possibly ten minutes. 



114 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. Do you recall what Mr. Townsend said when 
he first spoke to you? A. Yes. 

Q. Would you repeat the conversation as nearly 
as you recall it ? 

A. As best I recall, Mr. Townsend informed me 
that he had 20 years, something like that, experi- 
ence in the pulp industry ; that he was out of work ; 
had no work in sight and he was broke ; his family 
were — he was in bad circumstances and had to have 
a job. He informed me that he could get out to 
California for just his gasoline expenses and he 
felt that he could do better out there than he could 
where he was staying; that in a new mill there 
was opportunities that there wasn't where he [99] 
was. His statements also included the time spent in 
the industry and a very brief description of his 
education and training, the types of equipment he 
had worked on. 

Q. Was there mention of the fact that he had 
filed an application with the company? 

A. He mentioned that he had filed an application 
with us and that he had a letter from Mr. Stitt 

acknowledging the application and that 

* # * 

Q. (By Mr. Holmes) : Do you recall anything 
more that was said in this conversation by Mr. 
Townsend? 

A. His experience, his background. On my state- 
ment to him at that time that the company had to 
examine all the records of every applicant 

Q. This is what you said to him in reply? 



vs. W. H. Townsend 115 

(Testimony of Thomas M. Lindley.) 

A. Yes, this 

Q. All right ; state what you said to him. 

A. This conversation was two-sided to some ex- 
tent. I stated [100] to him that we had to examine 
all the applications; we had to write to several of 
his — in fact, to all of his past employers; to the 
effect also that we had a physical examination that 
he would have to pass before he could be hired. 
Also I told him that the plant startup date was 
so far in the future that I couldn't encourage any — 
I asked him why he wanted to make the move at 
this time. Then he gave me the story about the 
hardship in his case; that he was out of work and 
had nothing in sight there. 

Q. Did you tell him that you would give him a 
permanent job? A. No, sir. 

Q. Did you tell that you would refund any 
amount he spent in transporting himself and family 
from Alabama to California ? A. No. 

Q. Did you tell him that the company would help 
him purchase a home? A. No. 

Q. Did you say anything to him concerning 
transportation money or tranportation expenses? 

A. No. 

Q. Was the subject mentioned in the conversa- 
tion? 

A. He mentioned the subject briefly, as I said, 
regarding his being able to get out there in a car 
somehow or other; that it would only cost him his 
gas, and it would only require his [101] buying the 
gas. 



116 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. My question is did you make any statement 
with respect to the company paying the transporta- 
tion expenses'? A. No, never. 

Q. Did the conversation concern any particular 
job in the plant/? A. No. 

Q. Was there any discussion of any particular 
job in the plant? A. No. 

Q. Did Mr. Townsend tell you he would arrive 
ready for work on November 15th 1 ? 

A. No, he didn't. 

Q. Was there any mention made of a temporary 
job in another plant? 

A. Yes, I stated to him that if he had to have 
work, provided his records stood up under our 
examination and so forth, that he could reasonably 
count on work in the new mill and that we would 
— in his case where he was out of work, we would 
try to place him in one of the other plants until 
we got ready for him at the new mill. 

I also stated to Mr. Townsend that I had no au- 
thority to hire people over the telephone nor to 
make contracts. The only reason for this conversa- 
tion was that in his case, as he stated, he was out 
of work and he had to have a job. [102] 

Q. Was there anything else said in this conver- 
sation that you can recall ? 

A. At the moment I don't recall. 

Q. When did you see or talk to Mr. Townsend 
after this telephone conversation? 

A. The morning he arrived there I believe he 



vs. W. H. Townsend 117 

(Testimony of Thomas M. Lindley.) 

came in the office and said " Hello" or something 

of that kind, and made it known that he was there. 

Q. Do you know approximately when that was ? 

A. It was something around the middle of the 
month of November, I believe. 

Q. Did you talk to him on that occasion? 

A. Not about the job. 

Q. You did see him then? 

A. I seen him then. 

Q. What did you talk about? 

A. Well, he stated his intentions of driving this 
car to some fort, and locating his family in Lbs 
Angeles or somewhere where he had relatives and 
that he would be back in a few days. 

Q. Anything else about that that you can recall I 

A. I stated to him that we would set the ma- 
chinery in motion to try to place him in one of the 
plants. 

Q. Anything else in that conversation? 

A. No, I don't believe so. 

Q. When did you see or talk to Mr. Townsend 
again after that? [103] 

A. Upon his return to the plant after taking his 
car where he was delivering it to, he returned, 
and I was notified by Mr. McCuish that he was 
there, and we had our interview. 

Q. Who is Mr. McCuish? 

A. He is our personnel manager. 

Q. And Mr. McCuish notified you that Mr. Town- 
send was there ? A. Yes. 



118 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. Then did you talk to Mr. Townsend on that 
occasion? A. That's right. 

Q. This was sometime in the month of November, 
1948? A. Yes. 

Q. Where did the conversation take place ? 

A. In my office there in the plant. 

Q. In the plant? A. At the plant. 

Q. Was anybody else present? 

A. Yes, Mr. McCuish was there. 

Q. All of the time or just part of the time? 

A. He was there most of the time, I believe. 

Q. Can you recall this conversation with Mr. 
Townsend? 

A. Yes, I had him relate his experience, his 
technical background, and his general background 
in his own words. I wanted to know in his own 
words where he had been, what he had done, his 
experience, so I could be 

Q. Did he tell you that information ? [104] 

A. Yes, part of it. 

Q. What else occurred in this conversation? 

A. The discussion centered around his gettting 

started at work there more than anything else. 

Inasmuch as we had no definite job in mind for 

him in the plant. 

* * * 

Q. (By Mr. Holmes) : Just state what Mr. 
Townsend told you in this conversation. What did 
he say about his need for a job? 

A. He said that he had a few dollars in his 
pocket and had to have a job; his family was in 



vs. W. H. Townsend 119 

(Testimony of Thomas M. Lindley.) 

Los Angeles, I believe, with relatives, and he wanted 

to bring them to Antioch at the earliest moment. 

Q. Did he say anything about the kind of a job 
he wanted? A. No, he didn't. 

Q. What did you tell him? [105] 

A. I told him his request was in the hands of 
our manager, who was trying to locate work. T 
pointed out to him that the company had several 
plants, and it might be possible that he would have 
to go to one of the other plants to work. He stated 
that he wanted to live in Antioch, preferred to 
live there. And my answer to that was, "Well, if 
that is the case, it might be a little longer getting 
something for you at the Antioch Division," be- 
cause that narrowed down the field considerably. 
He made the statement that that was all right ; that 
he could get by somehow until something showed. 
I told him that from that point on that our re- 
view [106] 

# * * 

Q. (By Mr. Holmes) : You were talking about 
this second conversation with Mr. Townsend after 
he arrived in Antioch, Mr. Lindley, and would you 
continue ? 

A. Yes. At that conversation, after the urgent 
business at hand was taken care of, I informed Mr. 
Townsend again that our procedure, our policy, 
was to examine all references, the background of 
every applicant; that we had some 23 applications 
for the job that he seemed to be most interested in ; 
that those would be reviewed along with his and 



120 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 
would be considered on the basis of the qualifica- 
tions. 

Q. I think you mentioned the Antioch Division,. 
Would you identify it ? What do you mean by that ? 

A. That is our plant in downtown Antioch ; that 
is in Antioch proper. We are out of Antioch three 
miles. 

Q. That is a separate plant from the plant you 
are working in? A. Yes. 

Q. The San Joaquin division is a separate plant f 

A. That's right. 

Q. When you say the Antioch division you mean 
the other plant in Antioch, is that correct? 

A. Yes. 

Q. Anything else in your conversation that you 
recall f 

A. As I said, I told him of our investigation 
we made, the time we had to do this ; we were going 
to be very religious [108] about it, and consider 
everyone on the basis of qualifications. 

* * * 

Q. (By Mr. Holmes) : In this conversation did 
you tell Mr. Townsend that the salaried jobs were 
all filled but he could take his pick of any of the 
other jobs in the plant? A. No. 

Q. Did he mention a particular job to you in this 
conversation ? 

A. He stated that he would prefer to go to 
work in the recovery department inasmuch as he 
had more experience in that department. 



vs. W. H. Townsend 121 

(Testimony of Thomas M. Lindley.) 

Q. Did he tell you he wanted any particular job? 

A. Yes, he had stated that he wanted a job as 
recovery operator. 

Q. Did you tell him that he could have that 
job? [109] A. No. 

Q. Did you tell him in this conversation that 
the company would help him purchase a home? 

A. No. 

Q. Did you tell him in this conversation that 
the company would reimburse him or refund to him 
his traveling expenses? A. No. 

Q. How long did this conversation last? 

A. The best I recall, something like 15 or 20 
minutes. 

Q. Is that all of the conversation? Have you 
related all that you can recall ? 

A. Yes, as near as I -can recall. 

Q. Did you do something after this conversation 
with respect to getting Mr. Townsend a job some- 
where ? A. Yes. 

Q. What did you do? 

A. I took his request to the plant manager and 
he processed it, or rather he attempted to provide 
Mr. Townsend with work, which we did. 

Q. I want to know just what you did. You spoke 
to the plant manager about getting him a job? 

A. Yes. 

Q. Is that all that you did? A. Yes. 

Q. From that point on it was out of your [110] 
hands ? 

A. I informed Mr. Townsend that from that 



122 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

point on his contact with the plant personnel, as 

far as I was concerned, would be with the personnel 

department. 

Q. When did you see Mr. Townsend again or 

talk to him again? 

# # # 

A. He was at the plant a month or so later in- 
quiring about conditions and how things were going. 

Q. How long did you talk to him on that oc- 
casion? A. Not more than five minutes. 

Q. Did he talk to you about employment of him 
personally ? 

A. Yes, he asked about when we were starting 
up and if he was going to get the job in the re- 
covery department. 

Q. What did you tell him? 

A. I told him that our applications had not been 
processed; we had not received answers from our 
questionnaires we had mailed; the review of his 
case was not complete. 

Q. When did you see or talk to Mr. Townsend 
after that? 

A. He talked to me one time in the plant. He 
called about, or rather, he stopped me in the plant 
stating that he was 

Q. Can you place this as to date at all? [Ill] 

A. It is very hard, because he was in and out 
of the plant there. I would see him but wouldn't 
speak to him, and there is so many people there 
it is very hard. 



vs. W. H. Townsend 123 

(Testimony of Thomas M. Lindley.) 

Q. Was it several weeks later or several months 
later? 

A. I would say it was two or three months, pos- 
sibly five months ; it was quite some time. 

Q. Would that place it in the spring or summer 
of 1949? 

A. That would place it in the spring, say in the 
month — possibly in the month of May. [111A] 

Q. What occurred on this occasion? 

A. He stated that the boys over at the Antioch 
division were railroading him; he had been elected 
a delegate to the conference at Portland, or up in 
Oregon somewheres, and he wanted to go, and as 
soon as he could be transferred to the San Joaquin 
division as a permanent employee, he couldn't go 
to that conference. 

Q. What did you tell him? 

A. I told him I had no need for him at the 
plant at that time; therefore I couldn't request a 
transfer. 

Q. Anything else said in this conversation? 

A. I don't recall anything pertinent. 

Q. Anything else that you do recall whether 
you think it is pertinent or not? 

A. No, I don't recall anything else. 

Q. All right. When did you see or talk to Mr. 
Townsend again after that? 

A. He came to the house, or called, rather, by 
telephone, and came to the house and wanted to 
talk to me about his employment, and I told him 
that 



124 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. When was this? 

A. This was in June or July ; I am not positive 
of the dates. 

Q. In 1949? A. '49. 

Q. You say he called the house by phone ! [112] 

A. He called the house, wanted to talk to me, 
wanted to know if I would be home. I told him 
yes, to come on out if he wanted to, which he did, 
and he reiterated his desire to go to work at the 
plant. 

Q. What did you tell him ? 

A. I told him that we had not come to a conclu- 
sion on the application; on the basis of what we 
had seen it was not good; all of our answers that 
we were getting were of an adverse and that it 
didn't look favorable, but we hadn't come to a 
definite conclusion. 

Q. What did he say? 

A. Well, he informed me again about the people 
at Antioch, union people at Antioch, and the union 
he belonged to railroading him, and he was a victim 
of circumstances. 

Q. Did he explain that to you at all, what he 
meant by being railroaded or being a victim of cir- 
cumstances ? 

A. No; I didn't ask him for an explanation; T 
wasn't interested in that part of his 

Q. What did you say to him then after he men- 
tioned that? 

A. I told him to come to the plant in another 
week or so and we would give him a final answer. 



vs. W. H. Townsend 125 

(Testimony of Thomas M. Lindley.) 

Q. Anything else said in that conversation ? 

A. I am unable to recall. 

Q. You say you don't recall anything else in 
that conversation? [113] A. No. 

Q. All right. When did you see or talk to Mr. 
Townsend after that? Strike that a moment. Was 
there anyone else present at the time you talked to 
him in your home? 

A. Yes, I believe some friend of his was with 
him. 

Q. You don't recall who he was? 

A. I believe it was this man Fisher that he 
spoke of — brother-in-law, I believe; some relative. 

Q. All right. After this conversation at your 
home when did you see or talk to him again? 

A. In August, the latter part of August, he 
called wanting to know if I would be at the plant 
on such and such a date, I believe it was on the 
following Saturday. I told him I was at the plant 
every day. And then he called later stating tKat 
he couldn't be there the Saturday and wanted to 
know if he could be there Sunday. So I told him to 
come out. 

Q. Did he come out to the plant on Sunday? 

A. Yes. 

Q. And you talked to him? A. Yes. 

Q. Where did the conversation take place? 

A. In our personnel office. 

Q. Was there anybody there besides you and 
Mr. Townsend? A. No. 



126 Fihreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. What did Mr. Townsend say to you when he 
came in 1 ? [114] 

A. His words were " Well, am I still — am I going 
to be hired, or what is the status of my applica- 
tion?" — something of that nature. 

Q. What did you tell him ? 

A. I outlined to him briefly what we had then — 
w r hat we had gone through in checking the records. 
I informed him that his application did not stand 
up with others that we had. I had informed him 
before we were going to judge his application along 
with others, and that his was not favorable as other 
applications were, and therefore we would not con- 
sider him for a position in the pulp mill. 

Q. What did he say? 

A. He says "Well, I don't blame you" or some- 
thing of that nature. "That has happened to me 
before." He said, "I have been the victim of 
rumors." 

Q. He said that to you? A. Yes. 

Q. What did you say? 

A. And I said, "I can't base my decisions on 
rumors. I don't listen to rumors; they are flying 
thick and fast; I have to stock to facts." 

Q. What did Mr. Townsend say? 

A. He said, "Well, would you mind telling me 
where — who gave me a black eye" or "who is black- 
balling me," or something of that nature. I told 
him that I couldn't show him the company [115] 
records. I did state that on the face of his applica- 
tion there is a sentence asking if he had ever re- 



vs. W. H. Townsend 127 

(Testimony of Thomas M. Lindley.) 
signed or been asked to resign, and he answered 
"no"; that we had one or two letters from his 
former employers stating that he was discharged, 
which was a direct falehood. And that was about 
the only — only direct implication or reference to 
any particular letter. 

Q. Did he say anything about those instances to 
you in this conversation? 

A. Well, yes, he did say that again he had 
been blackballed; that he w T as misunderstood, the 
victim of circumstances in every case. 

Q. How long did this conversation last? 

A. Possibly ten or fifteen minutes. 

Q. Was there anything else said that you recall ? 

A. He asked me — rather, he stated to me that 
he knew of a mill starting up up in Oregon and 
wanted to know if I was acquainted with anyone 
up there. I told him I was acquainted with the 
superintendent of the pulp mill, and he asked me 
if I would give him a recommendation. I told him 
no, I had nothing to base a recommendation on; I 
couldn't give him a recommendation because I didn't 
know anything about him other than what other 
people had told me, and that wasn't public property. 
Therefore I could not give him a recommendation. 
And he wanted the name of the man, and I told 
him the man's [116] name. And he asked if it was 
all right if he called. I said "It is none of my busi- 
ness; of course you can call him." And he also 
stated, "I suppose you are going to blackball me." 
I asked him what he meant by blackball, and lie 



128 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 
had an answer; I don't recall exactly what it was. 
I told him that the records we had were company 
business; that it wasn't for me to give it to other 
companies or to blackball anyone in any way. And 
that was about the end. He stated that he did not 
hold any ill will against me for my actions. 

Mr. Townsend made several statements talking in 
generalities, which I don't recall all of them. 

Q. Was there any other part of the conversation 
that you do recall ? A. Not at the moment, no. 

Q. Did you tell Mr. Townsend in that conversa- 
tion that you were refusing to hire him on the basis 
of stories you had heard about him ? A. No. 

Q. Did you tell him that you were refusing to 
hire him on the basis of rumors ? A. No. 

Q. What did you do with respect to Mr. Town- 
send after he left? Did you advise anybody that 
you had 

A. I advised our personnel department of our 
conversation for the records and of my [117] de- 
cision 

* * * 

Q. (By Mr. Holmes) : Did you tell Mr. Stitt of 
your decision? A. No. 

Q. When did you see or talk to Mr. Townsend 
again? 

A. Every once in awhile out in behind — rather 
in the time alley, exchanged the time of day. 

Q. You say you exchanged the time of day with 
him ? A. Yes. 



vs. W. H. Townsend 129 

(Testimony of Thomas M. Lindley.) 

Mr. Garry: When? 

The Witness: I don't recall the date. 

Q. (By Mr. Holmes) : Can you state how long 
after this occasion when you told him you weren't 
going to hire him? A. No I couldn't. 

Q. And then did you see him or talk to him after 
that? 

A. I don't recall another conversation. I would 
see him from time to time in town, of course. 

Q. Did you ever talk to him about a job 

A. No. [118] 

Q. After this one instance when you told him 
you weren't going to hire him? A. No. 

Q. You haven't talked to him about a job since 

then? A. No. 

* # * 

Q. (By Mr. Holmes) : When did the recovery 
department start in operation? 

A. Continuous, the latter part of — the first part 
of September, latter part of August. 

* * * 

Q. You say in the month of September? 

A. In the month of September on a continuous 
basis. 

Q. What do you mean by continuous basis, in 
work operation? 

A. Yes, our plant is operated on a 24-hour basis. 
We had fired the boiler a few times prior to that 
for experimental trying out the tubes and so forth. 

Q. Did you have your crew hired when you 
started up in [119] continuous operation ? 



130 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

A. Yes. 

Q. How long before that time did you have your 
crew hired? 

A. I don't recall exactly how long. We had some 
of the boys there sooner than others. It was our 
policy to bring the men in with the least possible 
loss of time between their former jobs and when 
they started in our plant. 

Q. How long have you worked in pulp mills, 
Mr. Lindley? A. Since December, 1930. 

Q. Have you worked in pulp mills all of the time 
since that time ? A. Yes. 

Q. You are familiar with the machinery used 
in pulp mills? A. Yes. 

Q. Was this mill at the San Joaquin division a 
new mill? A. Completely new, yes. 

Q. Was there any new type of machinery in the 
mill? 

A. All of our equipment was the very latest 
type, yes. 

Q. I don't mean whether or not the machinery 
itself was new or used; I mean of its type, was it 
a new type ? 

A. No, it is all conventional equipment. 

Q. Did any of the processes or equipment differ 
from what you had used before in the industry? 

A. No, not basically. 

Q. In the pulp industry is it common to have a 
so-called [120] paper mill and a so-called pulp mill 
together in the same plant? 



vs. W. H. Townsend 131 

(Testimony of Thomas M. Lindley.) 

A. That is always the case. In most cases, that 

is true. 

* * * 

Cross-Examination 
By Mr. Garry : 

Q. Mr. Lindley, how old a man are you? 

A. Thirty-six. 

Q. Thirty-six. And you have been in the pulp 
mill business since 1930, is that right? 

A. That's right. 

Q. Where have you worked? 

A. Port Townsend, Washington, Tacoma, Wash- 
ington, and at Antioch. 

Q. In Antioch. Did you ever work in Oregon? 

A. No. 

Q. When did you come to work at Antioch? 

A. My employment began with Fibreboard Sep- 
tember or October [121] 1st, 1948. 

Q. October 1st, 1948? A. Yes. 

Q. And are you still with them, Mr. Lindley? 

A. Yes. 

Q. What are your duties and work that you are 
doing there beginning with October 1, 1948 ? 

A. My — one of my duties was to organize crews 
for starting up that plant ; assist in the construction 
of the plant where possible. 

Q. Did you ever have a superintendent's job 
before ? A. No. 

Q. This is your first employment as a superin- 
tendent, is that right? A. Yes. 



132 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. When you started to work there October 1, 
1948, did you know that the firm you went to work 
for had advertised in papers, trade journals, 
throughout the United States looking for paper pulp 
mill men, recovery operators and so forth? 

A. Yes, I was aware of that. 

Q. You were familiar with that? A. Yes. 

Q. Do you recall what those advertisements said ? 

A. No. [122] 

■* # # 

The Court: Do you recollect what was in the ad? 

The Witness: Not word for word; it was just 
a small ad for experienced pulp and paper mill 
workers. 

The Court: You don't have to say what was in 
it. All I want to know is do you recall what was 
in it? 

The Witness: I recall part of it. 

Q. (By Mr. Garry) : Were you given any rules 
or directions on how you were to employ anyone 
on October the 1st when you went to work there? 

A. Yes. 

Q. Were you given a list of those applicants and 
people who had inquired for employment? 

A. Yes. [123] 

Q. Were you familiar with the name of Mr. 
Townsend when you received the telephone call on 
October 18, 1948? 

A. Not distinctly familiar, no. 

Q. Mr. Lindley, didn't you tell Mr. Townsend 
that you had the application before you; you had 



vs. W. H. Townsend 133 

(Testimony of Thomas M. Lindley.) 
read his application, and that you were familiar 
with what Mr. Stitt had written? Didn't you tell 
him that? A. No. 

Q. You never did? A. No. 

Q. Well, then, is it your testimony then, Mr. 
Lindley, that when Mr. Townsend telephoned you 
on October 18, 1948, that you were a complete 
stranger to the name of Mr. Townsend? 

A. No, that is not correct. 

Q. Will you tell us what is correct ? 

A. Mr. Townsend, stated, as I told you before, 
I said I had seen his application; that I had not 
reviewed it ; I had no opportunity to do so. I recog- 
nized the name because it was one of many. Other 
than that I didn't know anything about him. 

Q. I show you this Defendant's Exhibit B and 
ask you to look at it, please. 

A. Yes, I have seen that before. 

Q. You have seen that before. 

A. Yes. [124] 

Q. You saw that before you had the conversation 
with Mr. Townsend on October 18, 1948, did you 
not? 

A. I merely counted — yes, I had seen it. 

Q. And you knew that the work that he was 
applying for and the type of work that he had said 
that he was qualified for in this application, did 
you not? A. Yes. 

Q. And, Mr. Lindley, you had an opening for 
that kind of a position, did you not ? 

A. Not at that particular time, no. 



134 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. Well, you 

A. The plant was not complete. 

Q. But you knew, with your experience since 
1930, that you had to have men qualified for that 
type of work? A. That is correct. 

Q. When the plant opened, isn't that right? 

A. That is correct. 

Q. And what was the type of work that Mr. 
Townsend was telling you that he was especially 
qualified to do ? 

A. Pulp mill work in general. 

Q. And in addition to that, he told you about 
his experience as a tour foreman; isn't that right? 

A. I don't recall him saying that over the tele- 
phone. 

Q. He didn't tell you that? 

A. I don't recall that. [125] 

Q. You w^ere familiar with the places that he 
had worked, were you not, from the application and 
also the conversation you had with him? 

A. You mean the companies he had worked for ? 

Q. Yes. A. No, I was not. 

Q. Did you make any notes of the conversation 
you had with Mr. Townsend, Mr. Lindley? 

A. No, I didn't. 

Q. In other words, the conversation you had 
with Mr. Townsend on October 18, 1948, which you 
testified to on direct examination took approxi- 
mately ten minutes; isn't that right? 

A. Approximately, yes. 

Q. What time of the day or night was this? 



vs. W. H. Townsend 135 

(Testimony of Thomas M. Lindley.) 

A. As best I recall, it was in the early afternoon. 

Q. Where were you when the telephone call 
reached you? 

A. I was in my office in the plant, or rather, in 
the main office. 

Q. You were in the main office in Antioch? 

A. Yes. 

Q. Did you write down any notation or any 
notes? A. No, sir. 

Q. You didn't keep any diary of the conversa- 
tion? A. No. 

Q. You did, however, write a letter on October 
19, 1948, to [126] Mr. Townsend, did you not? 

A. Yes. 

Q. And that letter that you wrote, the facts of 
the letter, would it be your testimony that you just 
wrote what you remembered from the conversation 
the night before without any written memoranda? 

A. That's right. 

Q. How is it, Mr. Lindley, that from October 
18, 1948, to the present time, how is it that you 
now recall what was said in that conversation that 
afternoon ? 

A. I recall the conversation as I have related 
it to you in this Court. 

Q. I said, how is it that you recall it? What 
brings it to your memory? t 

A. I don't understand your question. 

Q. This conversation, Mr. Lindley, took place in 
1948 on October 18th. A. Yes. 

Q. Isn't that right? A. Yes. 



136 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. You must have had very many other conver- 
sations with people, occasions and circumstances. 
By your own testimony, Mr. Lindley, you have told 
us that you didn't keep a memorandum or a diary 
of the conversation you had; isn't that correct? 

A. That is correct. [127] 

Q. What I would like to know if you will tell 
the Court,, how is it that you remember this par- 
ticular conversation as to what Mr. Townsend said 
and as to what you said? 

A. We were dealing in human lives; we weren't 
talking through our hat. What I told Mr. Town- 
send I had to back up. Mr. Townsend was making 
a move and I realized it. I pointed out to him defi- 
nitely what he was faced with in moving him and 
his family from Alabama out to California. I 
remember those conversations very distinctly. 

Q. In other w T ords, you recall that Mr. Town- 
send — you 'recall from his application and you also 
recall the conversation you had with Mr. Townsend 
on that date, and he told you he had a family; isn't 
that right? A. Yes. 

Q. You remembered that ? A. Yes. 

Q. You also remembered that, Mr. Lindley, 
when you saw his application, did you not? 

A. My first glimpse of Mr. Townsend 's applica- 
tion was merely to classify it. There are seven de- 
partments — there are seven jobs in the pulp mill. 

Q. And the only reason, Mr. Lindley, that you 
recall this conversation is because human lives were 
involved, is that right? 



vs. W. H. Townsend 137 

(Testimony of Thomas M. Lindley.) 

A. That's right. It was very important to me 
that I tell [128] Mr. Townsend the facts; that we 
apprise him of the situation in California that he 
would be faced with on coming here. Mr. Townsend 
made it very clear to me that he would accept that 
— take that chance, to put it in his own words. 

Q. I believe you testified, sir, that Mr. Town- 
send told you he wasn't working at the present time 
when he was talking to you ? 

A. He made that statement, yes. 

Q. You knew from his application that he was 
working, did you not? [129] 

* * * 

A. I didn't know that he was working, because 
I hadn't had a chance to study his application; I 
merely classified it. 

Q. (By Mr. Garry) : Did you know that he had 
stated in his application under the question of 
"Why do you wish to change?" "Wish to return 
to the Kraft Pulp Mill"? Did you know that that 
was in his application blank? 

A. No, not at that time. 

Q. Now, Mr. Lindley, you just told us that you 
remembered this conversation because you were 
dealing with human lives ? A. Yes. 

Q. In looking over these applications as you 
received them didn't you examine any of them 
from the standpoint, or this standpoint, to see why 
a man wants to go to work for your concern? 
Didn't you determine that? [130] 



138 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

A. In answer to that, at the time I received Mr. 
Townsend's phone call, I had had no opportunity 
to make a study of the applications; I only classi- 
fied them as to departments. 

Q. (By Mr. Garry) : Mr. Lindley, so I don't 
have to go through every one of these items, let me 
ask you this question: What did you notice in this 
application so that you were able to classify Mr. 
Townsend's application 1 ? 

A. He stated in there that he was qualified for 
several jobs. I marked it for one department that 
appeared to be the most likely from the standpoint 
of his experience, and I classified it as such. 

Q. When you say you marked it, did you mark 
it before you had the telephone conversation with 
Mr. Townsend? 

A. I don't recall definitely whether I did or not. 

Q. Do you recall making a mark on the docu- 
ment at all? 

A. I don't recall. I don't do that. The per- 
sonnel office makes the marks. [131] 

Q. You said you marked something. What were 
you referring to ? 

A. What I meant was that I asked the person- 
nel manager's secretary to note the department, 
recovery department, and put it in that file. I pre- 
sume she put a red mark on it of some kind. 

Q. Did you make your request in writing or by 
an oral statement? A. By verbal request. 

Q. In other words, was she in the same office 
with you at the time ? 



vs. W. H. Townsend 139 

(Testimony of Thomas M. Lindley.) 

A. She was in the same building. 

Q. In the same building ? A. Yes. 

Q. How did you communicate with her? 

A. I carried it from my office out to theirs. 

Q. You took the application and went in there 
and gave it to her, is that right? 

A. No, no, the applications were processed in 
batches, and they came in every morning and I 
picked the ones that we were through with, that is, 
that we had had a chance to give a passing look 
at and classify. Mr. Townsend 's application had 
been there some time prior to my coming to the 
employ of the company. 

Q. Did Mr. Stitt call your attention to Mr. [132] 
Townsend % A. No. 

Q. You don't recall how you got this informa- 
tion over to the girl in the classification or the per- 
sonnel office, do you? 

* * # 

A. I don't recall exactly what method we used 
for conveying the information from one office to 
another. When I arrived there all of these applica- 
tions were there, and they were put in my file cabi- 
net. As I reviewed them, I put them on the desk 
and they were picked up. I don't recall just what 
method they used to do it. 

Q. (By Mr. Garry) : Mr. Lindley, you had a 
conversation with Mr. Townsend in the afternoon 
on the 18th in your office. [133] 



140 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. (By Mr. Garry) : You had this conversa- 
tion with Mr. Townsend over the telephone, is that 
right? A. That is right. 

Q. After you got through with the conversation, 
Mr. Lindley, what did you do"? 

A. I immediately went to the personnel office, 
asked for his application. I told the girl there — I 
dictated an answer, or rather, a confirmation of our 
telephone conversation, where he would get it im- 
mediately. 

Q. When you said you went there immediately, 
did you do it the same afternoon, or did you do it 
the following day ? 

A. I did it that afternoon. Whether it was 
mailed that afternoon I don't know. 

Q. But you went right over there, right after 
you got through talking to him, isn't that right? 

A. Yes. 

Q. At that time when you went over there and 
you pulled his application out, did you study it f 

A. I asked where to pull it out. She let me [134] 
see it. 

Q. You saw it? A. Yes. 

Q. Did you have an opportunity to fully study 

it at that time ? 

* * * 

Q. (By Mr. Garry) : You did take the applica- 
tion out and study it, is that correct? [135] 

A. No, I didn't give it a detailed study at that 
time, for I didn't have time to. Mr. Townsend, was, 
according to his story, very desperate, and he had, 



vs. W. H. Townsend 141 

(Testimony of Thomas M. Lindley.) 

as he stated, his — he was determined to come out 

here regardless of whether we gave him a job or not. 

Q. You say Mr. Townsend told you he was very 
desperate, is that corrects A. Yes. 

Q. You made a mental note of that, is that cor- 
rect? A. That's right. 

Q. When you took the application out, didn't 
you notice on the application blank "Are you em- 
ployed at present?" 

Answer, "Yes. 

"Employer's name and address? 

"Otis Elevator Company, New York City, New 
York." 

A. That application was made prior to our tele- 
phone conversation; therefore I couldn't take it 
against his word. 

Q. Didn't that thought occur to you, Mr. Lind- 
ley? Now you are in charge of this department; 
you are hiring men to work in your department, 
in your pulp mill, isn't that right? That was your 
task? A. That was my duty, yes. 

Q. Didn't the thought occur to you to determine 
whether this man was really unemployed? 

A. No. [136] 

Q. You saw a discrepancy between what he said 
to you over the telephone and his application blank, 
did you not? 

A. No, I didn't. I didn't say I did. 

Q. And you didn't notice this portion of the 
application blank ? 



142 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

A. What way would I have of knowing whether 
he was working or not? 

Q. He said it in writing 

A. This was prior to our telephone conversation. 



Q. (By Mr. Garry) : Mr. Lindley, I call your 
attention to Plaintiff's Exhibit No. 3, a letter sent 
by you to Mr. Townsend. Will you read that, 
please? A. In its entirety? 

Q. Yes, so you will be familiar with it. [137] 

* * * 

A. I recognize it as having written it. 

The Court: That is the letter you wrote? 

A. Yes. 

Q. (By Mr. Garry) : You remember that letter, 
do you not? A. Yes. 

Q. That is the letter you wrote after you had 
the conversation with Mr. Townsend? 

A. Yes. 

Q. You told Mr. Townsend, you testified earlier 
on direct examination, that you had no authority 
to hire anyone over the telephone; is that correct? 

A. Yes. 

Q. Then how do you account for the fact of in- 
viting Mr. Townsend to come down and you would 
have a job for him ? 

A. I stated in my letter that if it was his desire 
to come to the Coast we would try to place him, or 
we would place him. 

Q. You didn't say anything in this letter that 



vs. W. H. Townsend 143 

(Testimony of Thomas M. Lindley.) 

he would have to pass a physical examination, did 

you'? 

A. I had told him that over the telephone. 

Q. You didn't tell him anything about the fact 
that his application would have to be passed upon 
in this letter that you wrote to him, did you I [138] 

A. No. 

* ■* * 

Q. (By Mr. Garry) : Mr. Lindley, I call your 
attention to this letter of October 19, 1948, where 
you said that "We were pleased to receive your 
telephone call of October 18th. In line with our 
conversation, the new mill is still under construc- 
tion and it will be about the first of March before 
actual operations begin. However, if it is your de- 
sire to come to the Coast at an earlier date, we 
will place you in one of our mills at whatever they 
might have for you until we begin operating." [139] 

* * * 

Q. (By Mr. Garry) : I believe in your direct 
testimony, Mr. Lindley, you stated that nothing was 
said about housing by Mr. Townsend over the tele- 
phone; is that correct? 

A. I don't recall that I said anything. I didn't 
say anything about housing. I believe I did men- 
tion housing — that was a very critical thing at the 
time ; we were very much concerned about it. 

Q. You say you believe you did? 

A. My statement was that we didn't — I made 
no commitment or promise of housing it it in any 



144 Fiireboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

way. I informed him of the housing situation in 

Antioch. [141] 

Q. You just thought of that now after reading 
this letter, did you not? On your direct examina- 
tion I believe the question was asked you if you 
mentioned any housing to Mr. Townsend, and I 
believe your answer was that you didn't; is that 
correct ? A. I cannot recall. 



The Court: But the thing I am interested in, 
what is your independent recollection of what you 
told Mr. Townsend about housing? 

The Witness: I related to Mr. Townsend here 

the critical situation about housing. I informed him 

something about the situation on sales, rentals were 

practically non-existent, and something about the 

price range. [142] 

♦ * * 

Q. (By Mr. Garry) : Then, Mr. Lindley, be- 
cause you read this letter a few moments ago that 
I handed you, this conversation on housing was re- 
freshed in your memory, is that right ? 

A. No, that is not right. 

Q. Did Mr. Townsend ask you if he could buy 
a home there f A. No. 

Q. Over the telephone? 

A. No. He asked about housing. 

Q. What did he ask you about housing ? 

A. I don't recall his exact words. 

Q. You had already testified that Mr. Townsend 



vs. W. H. Townsend 145 

(Testimony of Thomas M. Lindley.) 
told you he was in desperate financial circum- 
stances ? A. Yes. 

Q. Isn't that correct? A. Yes. 

Q. And yet you write him a letter and say, 
"However, there are some homes available for pur- 
chase ranging in price from $6500 to $9000. " 

A. I attempted to inform him of the situation. 

Q. As a matter of fact, Mr. Lindley, you were 
very anxious to [143] have Mr. Townsend come 
down there because you were desperate for a crew 
to start in your plant, you were trying to get ready ; 
isn't that correct? A. No, that is not true. 

Q. You weren't anxious? A. No. 

Q. How many applications had you received up 
to that time for recovery work? 

A. We received some 20 — I don't recall; be- 
tween 20 and 30 applications. 

Q. 20 and 30 applications? 

A. As my memory serves me. 

Q. How many men did you need? 

A. I needed four. 

Q. You needed four men? A. Yes. 

Q. You needed four men. Is that why you ad- 
vertised in all these trade journals? 

A. We are only speaking of one job. 

Q. I am talking about pulp mill work. 

A. I understood your question to be about the 
recovery plant. 

Q. I am talking about the pulp mill work. You 
were developing a crew for that, were you not? 

A. I am a little confused. Will you start over 



146 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

again on this line of questions and we will get 

started out right? [144] 

Q. How many applications had you received 
from advertisments in trade journals on October 
18, 1948? 

A. I don't recall the exact number; there was 
possibly over a hundred. 

Q. Over a hundred? A. At least. 

Q. At least? 

A. I recall that much about it. 

Q. How many men did you need in this recovery 
— new plant that you were opening up, no matter 
where you put them ? 

• * * 

Mr. Garry: I meant the whole plant. He has 
already said he needed four in that plant. 

The Court: You used the word "recovery" and 
that may have been confusing. 

Q. (By Mr. Garry) : How many men did you 
need in the pulp mill work ? 

A. We needed approximately 68. 

Q. You needed 68 men? 

A. Yes. Of that 68 we had planned to absorb 
as many local [145] people as possible so that would 
cut down the number on the outside, people coming 
into the pulp mill, to approximately 25. 

Q. Then for these 25 men that this entire new 
plant needed you were advertising in trade journals 
all over the United States; is that your testimony? 

A. Your word in there 



vs. W. H. Townsend 147 

(Testimony of Thomas M. Lindley.) 

The Court: Your position is, I take it, you 
want to get at the fact of how many trade journals 
they did advertise in and for what. 

Mr. Garry: That is right. 

The Court: Let's get to that phase of it, then. 

The Witness: To the best of my knowledge 

The Court: I will overrule the objection, and 
the question has been reframed in accordance with 
this discussion. [146] 

A. To the best of my knowledge they only ad- 
vertised in the Southern Pulp & Paper Industry. 
That is a trade journal that is of interest only to 
the pulp industry. 

The Court: What were you trying to get from 
those advertisements? 

A. For the pulp mill, the department I was in- 
terested in, we were trying to get in the neighbor- 
hood of 25 or 30. 

Q. Of any specialized type of work? 

A. For the various departments, yes, for skilled 
work. 

The Court: Is there anything further you want 
to know about that? 

Q. (By Mr. Garry) : At the time you had this 
conversation with Mr. Townsend, Mr. Lindley, how 
many men did you actually need on that afternoon ? 

A. As I have stated before, in the neighborhood 
of 25 to 30 men. 

Q. You needed 25 or 30 men, is that correct? 

A. For the entire pulp mill. 



148 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. You were very anxious to have Mr. Town- 
send? A. No, I wasn't anxious. 

Q. come to California? 

A. No, I wasn't anxious. 

Q. Then why did you send him a letter on Oc- 
tober 19, 1948? 

A. Due to the urgency of his situation as stated 
to me over the telephone, we were trying to help 
him out. [147] 

Q. You were trying to be charitable, is that it? 

A. That's right; that's it exactly, because we 
didn't need him at that time. 

Q. Just trying to help Mr. Townsend out? 

A. We didn't need him at that time. We were 
unable to place the people we were getting in the 
area; there was considerable effort and trouble on 
our part to place these people coming in here in 
the other plants. We were burdening the other 
plants with our men. At the time of our telephone 
conversation, I couldn't foresee starting up that 
plant; therefore Mr. Townsend 's entrance here or 
appearance here was a detriment to us. 

Q. Didn't you tell Mr. Townsend that you ex- 
pected the plant would open in March? 

A. As near as I knew at that time, that was my 
thinking. 

Q. That wasn't very far away from the time you 
wrote this letter, was it ? 

* * * 

A. Well, that telephone conversation was in Oc- 






vs. W. H. Townsend 149 

(Testimony of Thomas M. Lindley.) 
tober and this letter was written in October. I 
would say that from March, I was trying to foresee 
considerably more than I knew [148] about. We 
were having — at the time we wrote that we were 
having a strike there at the plant; we didn't know 
how long the strike would last. 

Q. (By Mr. Garry) : You didn't know how 
long what would last? 

A. There was a strike on at the plant, and we 
had no idea how long it would last. 

Q. There was a strike on at your plant. Where 

was the strike? 

•* * * 

Q. Where was the strike? 

A. The strike didn't concern Pibreboard itself. 
The only [149] thing concerned — it was construc- 
tion labor that was on strike, not anything to 
do with us. It merely held up construction of 
the plant. Therefore, it made it much harder to 
foresee any start-up date. 

Q. In other words, it was a strike that was go- 
ing on in connection with the new plant? 

A. With the construction of the plant. 

Q. Did you recall from the application of Mr. 
Townsend that Mr. Townsend had had experience 
setting up new plants ? A. No. 

* *• * 

Q. (By Mr. Garry) : Did Mr. Townsend tell 
you when he would be in California ? 
A. No, he did not. 



150 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. He didn't tell you that he would be there on 
the 15th day of November, 1948? 

A. No, he did not. 

Q. He could have said that and it might have 
escaped your [150] memory? Could that be pos- 
sible? A. It is possible. 

Q. Do you recall the date that you saw Mr. 
Townsend? 

A. No, I don't recall the date exactly. 

Q. Do you keep a diary of it in your office, of 
the people you interview and people you talk to ? 

A. No. 

Q. I believe that Mr. Townsend testified yester- 
day that he saw you on the 15th day of November. 
Would that be the approximate date? 

A. It is possible, yes. 

Q. What was the conversation that you had the 
first time you saw him? 

A. The conversation was, as I stated this morn- 
ing, about his arriving here. He mentioned briefly 
his family, about the trip they had enroute; and 
he was delivering a car somewheres down around 
San Francisco, and he wanted to know what the 
possibility was of going to work. That is the sum 
and substance of that. 

Q. He had this letter dated October 19th with 
him too, didn't he? 

A. I don't know whether he did or not. 

Q. As a matter of fact, he showed it to you, 
did he not, and said, "I brought this with me. Here 



vs. W. H. Townsend 151 

(Testimony of Thomas M. Lindley.) 
I am, 'Alabam' Townsend"? Didn't he say some- 
thing like that to you ! 

A. No, I don't know if he did. I wouldn't say 
he did or [151] didn't. Announcing his arrival was 
enough. 

Q. How long did that conversation last ! 

A. A very few minutes. I don't recall how long 
it lasted. 

Q. When did you see him again? 

A. Some week or so later; after he delivered 
his car. 

Q. A week later? 

A. I don't recall exactly; possibly a week; 
maybe a little longer. 

Q. You say you saw him again about a week 
later? 

A. I don't recall whether it was a week or a 
week and a half or three days; it was some short 
period of time. 

Q. When did Mr. Townsend go to work for the 
Fibreboard Company? A. I don't know. 

Q. The second time you had a conversation with 
him, I believe it was your direct testimony, was 
it, that you say Mr. McCuish was with you in the 
office? A. Yes. 

Q. What time of the day was that ? 

A. I believe it was in the forenoon; I don't re- 
call about the hour. 

Q. And that is the second time you had seen 
Mr. Townsend; is that your testimony? 

A. As best I recall, yes. 



152 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. Did he go to work that same day? [152] 

A. No. 

Q. When did he go to work? 

A. I don't know. 

Q. Would it make any difference in your time 
of his starting if I was to tell you that Mr. Town- 
send went to work on the 22nd day of November, 
1948? 

A. I don't know as it would. Mr. Townsend 
was told when he came back that we would try to 
place him; that the other division known as the 
Antioch Division would take him on as soon as 
they had an opening. I don't recall the exact date 
he went to work. He was out around the plant a 
few times; he was out around the time rack a few 
times, and some three or four days later the Per- 
sonnel Department informed me that Mr. Town- 
send was employed at Antioch. I inquired every 
day as to what progress they had made. The best 
I recall it wasn't over a week after his second ap- 
pearance after he was put to work. [153] 

* * * 

Q. (By Mr. Garry) : Mr. Lindley, calling your 
attention to the first time that you had a conversa- 
tion witth Mr. Townsend in Antioch, you say that 
conversation only took a couple of minutes? 

A. A very few minutes. 

Q. And the next time you had a conversation it 
took about 15 or 20 minutes, isn't that correct? 

A. I don't recall off hand now how many minutes 



vs. TV. H. Townsend 153 

(Testimony of Thomas M. Lindley.) 
it was. It was sufficient for an interview for the 
purpose we had in mind to determine his possible 
candidacy for the job. 

Q. Did Mr. Townsend at that time show you any 
papers or notebook of any kind to help you out 
in your new job? A. Xo. 

Q. You don't recall him offering you a shift 
report on what happened in different shifts in the 
operation of a new plant? 

A. I don't recall any such thing, no. 

Q. By this time had you seen the recommenda- 
tion that Mr. Stitt returned after making a copy 
for the company, the recommendation of the North 
Carolina Pulp Mill Company? (Showing [155] 
paper to witness.) 

A. Yes. I had seen that. I believe. 

Q. Had you seen that prior to the time you had 
the telephone conversation with Mr. Townsend? 

A. No. 

Q. Did you see it before you wrote the letter to 
Mr. Townsend? 

A. Xo, I don't believe so; it may have been 
among his — in his file, but I didn't — as I stated 
before, I didn't study that file, and therefore I 
wouldn't be 

Q. Did anyone authorize you or direct you to 
write that letter to Mr. Townsend on October 19, 
1948 ! A. Xo. 

Q. You did that entirely of your own accord I 

A. Yes. 

Q. Didn't discuss it with Mr. Stitt I 



154 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

A. I seem to recall there was some discussion 
between — no, I don't believe there was. I couldn't 
say there was. 

Q. Did you discuss it with Mr. McCuish ? 

A. Well, Mr. McCuish 's office took care of all 
of our correspondence. 

Q. You made the statement this morning, and 
at the end of your conversation you turned and 
spoke to the plant manager and you said that from 
that time on the " Personnel Manager will handle 
all matters pertaining to you," referring to Town- 
send? 

A. You are asking me a question 1 [156] 

Q. Yes. Did you make that statements 

A. Yes. 

Q. What did you have in mind when you said 
that to him? 

A. That the personnel office would handle all 
contact between the other division and ours re- 
garding Mr. Townsend's temporary employment and 
I wouldn't have anything to do with that; that 
would be handled through the personnel department. 
Therefore, Mr. McCuish would know — would be the 
first to know when they had — or, rather, when one 
of the other divisions had a place to put Mr. Town- 
send. 

Q. And you weren't making a reference at that 
time to the recovery plant foreman, recovery man's 
position, that you had discussed with Mr. Townsend ? 

A. No. 

Q. You did discuss in this conversation that you 



vs. W. H. Townsend 155 

(Testimony of Thomas M. Lindley.) 

were planning to use Mr. Townsend in the recovery 

room, did you not? 

A. That was the department that his file or his 
application was placed under. 

Q. I asked you if you discussed that with him ? 

A. With who? 

Q. With Mr. Townsend. A. At what time 1 

Q. At the time that you had this conversation 
that on direct examination you said took 15 or 20 
minutes and now you don't recall how long it [157] 
took. 

A. We discussed the recovery job, yes. 

Q. You said you saw him again about a month 
after that? 

A. I believe so, out in the plant. 

Q. You don't recall the exact date? 

A. No, I don't. 

Q. You have never made any memorandum or 
any data in reference to any conversation you had 
with Mr. Townsend, have you? 

A. No, not especially. 

Q. Then the next time you saw him — I am just 
following your own chronological statement of when 
you saw Mr. Townsend — you stated this morning 
you saw him twice immediately after he came back f 

A. Yes. 

Q. And you saw him again one month later? 

A. I didn't remember saying a month; I don't 
recall exactly the period of time that elapsed be- 
tween our first two meetings and the time out in 
the plant that I talked to him. I have no recollec- 



156 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

tion directly of the time involved there; possibly 

a month or so. 

Q. Then you said that you saw him again a 
couple of months later ; then you made the time about 
May. You said at that time that Mr. Townsend told 
you that the boys were railroading him; isn't that 
right? 

A. No, I didn't say that at that time. At the 
time that Mr. Townsend made the statement that 
the boys were railroading [158] him was when he 
was out at our plant on a temporary assignment 
some time 

Q. When was that, sir? A. Sir? 

Q. When was that? 

A. I believe that was in May ; in the late spring ; 
April or May some time. 

Q. That is what I asked you, if it was some time 
in May. 

A. That is correct ; it was some time in May. 

Q. The boys were railroading him? 

A. That's right. 

Q. As a matter of fact, Mr. Lindley, the discus- 
sion about railroading didn't occur until a long- 
time after, in August; isn't that a fact? 

A. He had been over at the plant from the time 
he came there in November until the Unions were 
electing their delegates for the general convention, 
and that was just prior to that time that he talked 
to me and tried to get me to request his tranf er. 

Q. Mr. Lindley, isn't the convention that you 
are speaking of some time in September? 



vs. W. E. Townsend 157 

(Testimony of Thomas M. Lindley.) 

A. No, that is in June. 

Q. Then you also testified that the next time 
you saw Mr. Townsend was some time in June or 
July, when he came to your house, is that [159] 
correct ! A. Yes. 

•* * * 

Q. (By Mr. Garry) : And you also testified at 
that time Mr. Townsend had someone else with him ? 

A. At the time Mr. Townsend came to my house 
his brother-in-law, I believe, was there — was with 
him. 

Q. What was the discussion you had with him at 
that time? 

A. His possible employment with us. 

Q. What was said, do you recall? 

A. I don't recall the entire conversation. I recall 
that Mr. Townsend wanted to know whether or not 
he was going to work out there; how he stood in 
the lineup of applications. And I remember telling 
him that his references that he had given us weren't 
too good, they weren't too favorable, and it was 
somewhat doubtful. 

Q. You told him this about June or July and 
you say that this happened at your home, is that cor- 
rect? A. Yes. 

Q. As a matter of fact, Mr. Lindley, didn't this 
conversation take place in your home February 8, 
1949, and not in June or July? 

A. In June or July is the best I can recall. 

Q. And you have no independent recollection of 
the time at all? [160] 



158 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

A. Not exactly, no. 

Q. As a matter of fact, the conversation at that 
time between you and Mr. Townsend was over Mr*. 
Fisher gaining employment in the plant? 

A. No. 

Q. And it had no reference at all — wait until 
I finish the question, Mr. Lindley, then you can 
say "No" or "Yes" — had no reference at all to the 
discussion between yourself and Mr. Townsend as 
to employment or the lack of employment? 

A. Are you finished? 

Q. Yes. 

A. His statements to me were as I stated to you 
before. He wanted to know about his possibility of 
employment. He made several statements — I ques- 
tioned him somewhat about his statements that he 
had never been fired. I didn't like that, and I 
wanted to explore that a little to help me make up 
my mind. 

Q. Did you send for Mr. Townsend? 

A. No. 

Q. Then why did he come down to see you? 
Your plant wasn't operating, was it? 

A. I have stated as far as I know the reason; 
there he is; you can ask him why he came to see 
me. That is all I know, is his questions that he 
asked me. 

Q. Did you have his file at your home when you 
were talking to [161] him ? 

A. No, I didn't. 

Q. Did you report this conversation you had with 



vs. W. H. Townsend 159 

(Testimony of Thomas M. Lindley.) 

Mr. Townsend on this day at your home to anyone ? 

A. No, not that I know of. 

Q. Mr. Lindley, have you discussed this case 
with anyone ? A. Yes. 

Q. Who have you discussed it with ? 

A. With it seems to me everyone in Antioch. Mr. 
Townsend is a very unusual figure, and it was quite 
involved. This Townsend case has been bothering 
us for quite some time. We have two other suits, 
as I recall, and Mr. Townsend, you will have to 
admit, is a very unusual man, and you couldn't 
escape discussing with someone his case. I have 
discussed his case with many people. 

Q. When did you first start thinking what the 
conversation was about on October 18th? When is 
the first time you had occasion to discuss that con- 
versation with anyone ? 

A. October 18th — was that our telephone con- 
versation f A. Yes. 

A. I don't recall when it was brought out. 

Q. You don't remember that? 

A. I don't recall who I discussed it with off 
hand. 

Q. Did you discharge Mr. Townsend? 

A. I couldn't discharge a man that had never 
been hired. [162] 

Q. You were in court yesterday, were you not ! 

A. Yes. 

Q. You heard Mr. Townsend say that he had a 
meeting with you? A. Yes, sir. 

Q. Which at one time was set for Saturday 



160 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 
morning, and the because he was working that day 
he called you and made the meeting with your per- 
mission on a Sunday; isn't that correct? 

A. I believe that is substantially correct, yes. 

Q. I believe the date on that would be August 
28th. You heard his testimony that you told him 
that "Townsend, due to rumors I am not going to 
hire you; I am going to discharge you." Did you 
make such a statement, or did you not ? 

A. I did not. 

Q. What did you tell him on that day? 

A. I have already related what I told Mr. Town- 
send on that day. 

Q. Do it again if you will, please. 

A. I told him that we had studied his case; we 
had the answers of his former employers ; we knew 
how many times he had moved from one job to 
another; I had gone into his technical background 
and, therefore, we didn't feel that he was — his 
application was up to the standards that we were 
hiring. 

Q. Had you done all that, Mr. Lindley? 

A. Yes. 

Q. As a matter of fact, you had done all [163] 
that? A. Yes, sir. 

Q. Had you gone into his technical background ? 

A. Somewhat, yes. 

Q. In what way did you go into his technical 
background ? 

A. I established that he didn't have any. 



vs. W. H. Townsend 161 

(Testimony of Thomas M. Lindley.) 

Q. Did you investigate the recommendations 
from the North Carolina Pulp Company? 

A. Yes. 

Q. And did you find that their recommendations 
were any different from that recommendation dated 
February 1, 1944, which your office copied before 
they sent him the letter of September 1, 1948 f 

A. I didn't take into consideration anything 
that was in our files prior to the time — as far as 
the recommendation I am speaking of, it wasn't 
taken into account, any of his antecedents, any of 
his recommendations that he gave us. Anyone can 
pick up any amount of recommendations. That 
doesn't mean a thing. 

Q. Mr. Lindley, I think I asked you a very 
simple question. The question I asked you is, did you 
investigate the recommendation dated February 1, 
1944, of the North Carolina Pulp Company? 

A. I don't recall specifically that we investigated 
with that company. I believe we did. 

Q. You don't know whether you did or you [164] 
didn't? 

A. I couldn't say for sure we did or I couldn't 
say for sure we didn't. 

Q. Do recall the elections for a delegate in the 
Union on or about the 1st or 2nd or 3rd of August, 
1949? A. No, sir. 

Q. You don't remember that? 

A. I know nothing about it. 

Q. Mr. Lindley, isn't it a fact that you had 



162 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 
planned on giving Mr. Townsend the job, he had 
been fully, completely satisfactory, until you found 
in your examination that Mr. Townsend had been 
a former organizer for the paper mill and pulp 
sulphite workers? A. No, sir. 

Q. That is not true, is it? 

A. That is not true. 

Q. You haven't made any such statement to any- 
one in Antioch? A. No. 

Q. Can you tell me, Mr. Lindley, while you are 
sitting there just in what way did Mr. Townsend 
not measure up to any of the things that he had 
put in the application and the application that he 
had made for the job as a recovery man? 

A. We had two letters, I believe, with adverse 
comments on him about his character. We had one 
letter stating that he had been fired for fighting 
on the job. His application directly says on the face 
of it that he was never — he says that he was [165] 
never fired. This letter from this company states 
that he was. It had been several years prior to the 
start up of our mill since Mr. Townsend had been 
actively engaged in pulp mill work. Some of our 
equipment was much more modern than any he 
had had acquaintance with. There was many rea- 
sons for it. 

Q. Mr. Lindley, when did you discover all this ? 

A. In the process of examining his application. 

Q. His application blank, as I remember it, and 
as you have already indicated that you examined, 
showed that he had not been actively engaged in 



vs. W. H. Townsend 163 

(Testimony of Thomas M. Lindley.) 
anything except as a tour foreman from 1940 to 
1945 and that he had not followed the paper in- 
dustry since then. He had already made that very 
clear to you, had he not? 

A. Part of that was on the face of his applica- 
tion, yes. 

Q. And he had already told you that, had he 
not, sir? 

A. I don't know that he did or didn't. 

Q. As a matter of fact, you don't remember 
what was said or what wasn't said; isn't that right ? 

A. I recall very clearly. 

Q. Did you ever confront Mr. Townsend with 
any of these statements that you found and you 
assumed that they were not true? Did you ever 
confront him with those statements? A. No. 

Q. You never did? A. No, sir. 

Q. Did you discuss with Mr. Stitt, prior to 
August 28, 1949, before you had this conversation 
telling Mr. Townsend that you weren't going to 
engage him in the recovery room ? A. No. 

Q. You never had any such conversation; just 
took it upon yourself to do it ? 

A. I don't recall. It wasn't necessary for me to 
take it up with Mr. Stitt. I reviewed it with my 
immediate superior. 

Q. Who was your immediate superior? 

A. Mr. Cash. 

Q. Mr. Cash? A. Yes. 

Q. Did Mr. Cash know Mr. Townsend? 

A. No, not to my knowledge. 



164 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. Didn't you tell Mr. Townsend on August -28, 
1949, " Townsend, you are too damned good a Union 
man to be working in here'"? A. No, sir. 

Q. You never made that statement? 

A. No. 

Q. Did you ever make a recommendation to any- 
one in your company, point out to them that you 
had found certain discrepancies in his application, 
and did you ever tell anyone that you had received 
communications that this man was not the man that 
you thought he was or purported to be? 

A. No. 

Q. You never did tell that to anybody? [167] 

A. No. 

Q. I didn't get the answer. A. No. 

Q. I thought you said you discussed it with Mr. 
Cash. 

A. I don't think I understood your question 

correctly. 

*• * ■& 

Mr. Garry: I will limit it just to the Company. 

Mr. Holmes: Limiting that just to the Com- 
pany, did you ever tell anyone in the Company? 

A. Yes, I reviewed all the applications of every- 
one. 

The Court : How about Mr. Townsend ? 

A. Yes, I did. 

Q. (By Mr. Garry) : With whom? 

A. Mr. McCuish. 

Q. Anyone else? A. No. [168] 



vs. W. H. Townsend 165 

(Testimony of Thomas M. Lindley.) 

Q. Were these communications addressed to 
you? 

A. They were addressed to our personnel de- 
partment. 

Q. And who gave them to you ? 

A. The personnel department. 

Q. Who in the personnel department? 

A. Mr. McCuish, I believe. 

Q. Mr. McCuish gave you those communica- 
tions I 

A. Yes; that is, he didn't give them to me; he 
let me see them. 

Q. When did you get those ? 

A. During the period of time that we were in- 
vestigating Mr. Townsend 's application. 

Q. Mr. Lindley, can you give us a more definite 
date? 

A. No; they don't come in on a certain date; 
there was a good many of them coming in; I don't 
recall the exact date. 

Q. You say a good many of them came in. Prom 
whom ? 

A. From the different individuals. We were 
getting letters and references every day. There was 
too many to recall exact dates of everyone of them. 

Q. Mr. Lindley, you have already stated that 
Mr. Townsend is a very unusual person ? 

A. Yes. 

Q. You said on two prior occasions he has sued 
your company; isn't that correct? 

A. Yes, sir. 



J 66 Fibreboard Products, Inc., etc. 

(Testimony of Thomas M. Lindley.) 

Q. And this case has been in progress since De- 
cember, 1949; [169] isn't that correct? 

A. Yes. 

Q. You have known about this case during that 
time? A. I believe so. 

Q. You also stated that there were two commu- 
nications that you received in reference to Mr. 
Townsend? A. I said there was at least two. 

Q. When did those two come in? 

A. I don't recall. 

Q. As a matter of fact, Mr. Lindley, there have 
been no such communications; isn't that right? 

A. No, that isn't right. 

Q. Who are they from? 

A. His former employers. 

Q. Who ? A. I don't recall at the moment. 

Q. Mr. Lindley, do you recall having a conversa- 
tion with Mr. Townsend on the 28th day of August, 
the day that we are talking about right now, 
wherein you reprimanded him for writing to a 
banker by the name of Mr. Bean, and Mr. Bean 
wrote to you about the character and the references 
of Mr. Townsend? Do you remember that? 

A. Yes, there was — I remember asking him a 
question; I didn't reprimand him. I was in no 
position to reprimand Mr. Townsend at any [170] 
time. 

Q. What do you mean ? How did you ask him a 
question? 

A. I just asked him if he wrote to this man, who 



vs. W. H. Townsend 167 

(Testimony of Thomas M. Lindley.) 

this man was, and what possible implication there 

was in writing to him. 

Q. Who was that letter addressed to, sir ? 

A. I don't know. 

Q. It wasn't addressed to you, was it ? 

A. It was a part of Mr. Townsend 's record, and, 

as I have stated before many times, everything goes 

through the personnel. The chances are it was 

written to the personnel; possibly Mr. Stitt; I don't 

know. [171] 

* * # 

GORDON V. McCUISH 

a witness called for defendant, sworn. 

The Clerk: Would you state your name to the 
Court? 
The Witness : Gordon V. McCuish. 

Direct Examination 
By Mr. Holmes: 

Q. Are you a resident of Antioch, Mr. Mc- 
Cuish? A. Yes, I am. 

Q. Are you employed by Fibreboard Products, 
Inc. ! A. Yes. 

Q. Were you employed by that company be- 
tween October of 1948, and September of 1949? 

A. Yes. 

Q. In what capacity were you employed during 
that period ? A. As personnel manager. 

Q. Do you know W. H. Townsend? [172] 



168 Fibreioard Products, Inc., etc. 

(Testimony of Gordon V. McCuish.) 

A. Yes, I do. 

Q. Do you remember the first time you saw him ? 

A. Yes. 

Q. Do you know about when that was ? 

A. About the middle of November as near as I 
can recall. 

Q. In what year? A. 1948. 

Q. Where did you see him? 

A. Mr. Townsend came into my office some time 
during the morning; I wouldn't say the time, and 
he came in and said, "I am Mr. W. H. Townsend, 
and I have sent an application, and I am here to 
apply for work." 

Q. What did you say to him ? 

A. I told him that at the present time the plant 
was still under construction and we weren't em- 
ploying anyone at this division at this time. 

Q. What did he say? 

A. He asked me if there was a possibility of 
getting work at one of our other divisions. I told 
him I would have to clear that with Mr. Stitt, our 
plant manager, and with Mr. Lindley, who had had 
correspondence with him prior to the day he called. 

Q. How did you know that? 

A. Being personnel manager, we have a file and 
record of the applications and supplements that is 
added to applications. 

Q. Did you recall having seen an application 
from Mr. [173] Townsend? A. Yes, I did. 

Q. You recognized his name when he came in? 

A. Yes, I did. 



vs. W. ff. Townsend 169 

(Testimony of Gordon V. McCuish.) 

Q. How long did you talk to him on this occa- 
sion? 

A. Not too long; possibly 15 or 20 minutes. I 
was discussing mostly Mr. Townsend 's trip to Cali- 
fornia with his family. 

Q. He told you about that? 

A. Yes, he did. 

Q. Did he say how he had gotten to California? 

A. Yes, he said he drove a car out from back 
east, from Alabama, and that he was delivering that 
to Ft. Mason within the next day or two, and I 
said — — 

Q. He told you that in the course of this con- 
versation? A. Yes, he did. 

Q. Go ahead. 

A. And he said that upon delivery of the car 
that he would be back and see if we could find 
something for him to do. 

Q. What did you tell him? 

A. We told him that we had been placing some 
of our men at the Antioch Division. 

Mr. Garry: Excuse me one minute. He says 
"We." I haven't heard anybody but himself. Will 
you clarify that, please? 

Q. (By Mr. Holmes) : What do you mean? 

A. By the way, I might mention that I had no 
authority to place [174] anyone at any division 
without first being instructed by the plant manager 
or one of the Superintendents in the plant. 

Q. By "we" who are you referring to? 

A. I am referring to Mr. Stitt and Mr. Lindley. 



170 Fibreboard Products, Inc., etc. 

(Testimony of Gordon V. McCuish.) 

Q. You are referring to the management of the 
plant? A. The management of the plant. 

Q. Was anybody else present at this conversa- 
tion? 

A. Prior to that time, no. I had tried to con- 
tact Mr. Lindley. In due course of time he came 
walking down 

Q. While you were talking to Mr. Townsend? 

A. While I was talking to Mr. Townsend. If I 
recall correctly, we asked our receptionist to call 
him on the phone and see if we couldn't have him 
come into the office to talk to Mr. Townsend. 

Q. Did Mr. Lindley arrive during this conversa- 
tion? A. In due time he did, yes. 

Q. Anything else said in the conversation that 
you recall? 

A. Not much more at that time other than in- 
troducing Mr. Townsend to Mr. Lindley. And, 
briefly, Mr. Townsend stating that he was here to 
work and he would like to have a job; that he had 
this car, and about those few comments Mr. Lind- 
ley said, "You come into my office," and he left and 
went into Mr. Lindley 's office at that time. 

Q. And the talk continued in Mr. Lindley 's of- 
fice? 

A. From then on the talk continued in Mr. Lind- 
ley's office. [175] 

Q. That was the end of your conversation 
with Mr. Townsend ? 

A. At that first meeting, yes. 



vs. W. H. Townsend 171 

(Testimony of Gordon V. McCuish.) 

Q. When did you see or talk to Mr. Townsend 
again after that? 

A. At a later date, which was possibly two or 
three days — it may have been a week; there was a 
little time elapsed — he made delivery of the ear to 
Fort Townsend — to Ft. Mason. 

Q. Just a minute. How did you know he had 
delivered the car? 

A. Because he had told me. 

Q. He came in the office again? 

A. He came in the office and told me he had 
delivered the car. 

Q. In this second conversation who was present 
when he came to see you in your office ? 

A. Only I when he first came in. 

Q. The two of you? 

A. Just the two of us. 

Q. He told you he had delivered the car to Ft. 
Mason? A. That is correct. 

Q. Now continue ; tell me that conversation with 
you, if you will, please. 

A. There was veiy little conversation at that 
time. I again contacted Mr. Lindley and called him 
in, and Mr. Lindley came in and during the time 
the three of us were in the office Mr. Townsend 
had asked if we — if Mr. Lindley had been fortunate 
enough to secure him a position at one of the other 
mills, [176] preferably Antioch, if possible. Mr. 
Lindley had told him that he hadn't done so at the 
present time but he would start then to try and 
locate him at one of the other mills. 



172 Fibreboard Products, Inc., etc. 

(Testimony of Gordon V. McCuish.) 

I would like to go back on the first meeting, if 
I may, and state this: that Mr. Townsend came in 
and took his billfold out of his pocket and said 
"This is about all I have got." He had a few 
dollars left — a dollar and some cents. This time 
he came back and he said, "I have to go to work." 

Q. You mean the second meeting"? 

A. The second meeting, he said, "I have to go 
to work; my funds are exhausted." So Mr. Lindley 
told him then that he had a number of applications ; 
that he hadn't been on the job long enough to re- 
view all of them and that there was a necessary 
procedure which must be followed on each applica- 
tion. The procedure that was followed was not dis- 
cussed in my presence. 

Q. You heard him tell Mr. Townsend about the 
procedure, however ? 

A. I heard him say that we had a number of 
applications and that they must be processed be- 
fore 

Q. Did this conversation between Lindley and 
Townsend continue outside of your presence? 

A. That was about the extent of our conversa- 
tion at that time. 

Q. What happened? 

A. Mr. Lindley and Mr. Townsend again went to 
Mr. Lindley's office. [177] 

Q: Then they were outside of your hearing? 

A. That's right. 

Q. Is there anything else about this conversa- 
tion up to the time they left you that you can recall ? 






vs. W. H. Townsend 173 

(Testimony of Gordon V. McCuish.) 

A. Not to my knowledge. It was very brief. 

Q. About how long did you talk to Mr. Town- 
send, or were you in his presence ? 

A. On the second meeting*? 

Q. Yes. 

A. Oh, ten or fifteen or twenty minutes, half an 

hour; I don't know; it wasn't very long. It wasn't 

too long. [178] 

•* * # 

Q. (By Mr. Holmes) : When did you see Mr. 
Townsend again to talk to, Mr. McCuish, after this 
second interview that you have just related? 

A. Periodically; quite often; I wouldn't begin 
to say how many times, just that it was often. 

Q. Would you say where you saw him? 

A. At the plant, on the streets of Antioch, and 
so forth. 

Q. Did you ever talk to him about a job on those 
occasions ? 

A. Frequently Mr. Townsend would call by tele- 
phone or stop at the plant and ask when the mill 
was going to start, and that was about the extent 
of talking about the job part of it, as far as I was 
concerned. 

Q. Did you ever talk to Mr. Townsend about a 
job in the paper mill in the plant? 

A. Yes, I did. [179] 

Q. Can you state when? 

A. I would say on or about the middle of 
August, or thereabouts; maybe later or a little be- 
fore. 



174 Fibreboard Products, Inc., etc. 

(Testimony of Gordon V. McCuish.) 

Q. Where did you talk to Mr. Townsend? 

A. Mr. Fuller — may I go back just a minute? 

Q. No; just answer the question. 

A. Where did I talk to Mr. Townsend? 

Q. Yes. A. In my office. 

Q. In your office? A. Yes. 

Q. Was anybody else there? 

A. The girl, my secretary. 

Q. And Mr. Townsend? 

A. And Mr. Townsend. 

Q. What was said in this conversation? 

A. Mr. Townsend came into my office and said 
that Mr. Fuller had offered him a job as broke 
bailer, but that he wasn't going to take that job, 
and would we consider a Mr. Fisher. I told him 
my position was not to employ anyone without first 
the supervisor authorizing their employment, and 
told him that I couldn't employ Mr. Fisher or no 
other individual without the supervisor first author- 
izing his employment. 

Q. Anything else said in that conversation? 

A. To the best of my knowledge there was noth- 
ing other than [180] asking for Mr. Fisher and 
walking on out. 

Q. Do you know where Mr. Townsend had been 
just prior to that conversation? 

A. He had been out in the mill talking to Mr. 

Fuller. 

* * * 

Q. (By Mr. Holmes) : Had you talked to Mr. 



vs. W. H. Townsend 175 

(Testimony of Gordon V. McCuish.) 
Townsend that day yourself prior to this conver- 
sation? A. Yes, I had. 

Q. How did you talk to him? 

A. I talked to him shortly after one o'clock and 
told him that there was a vacancy in the mill, in 
the board mill, and Mr. Fuller wished to interview 
him for that position. Mr. Townsend left that 
building and went out and talked to Mr. Fuller. 

Q. Then how long after that did you talk to him 
in this other conversation that you have related? 

A. Half an hour or 45 minutes. [181] 

* * ■* 

Cross-Examination 
By Mr. Garry: 

Q. Mr. McCuish, how T long have you been with 
the Fibreboard Company? 

A. September 16, 1948. 

Q. September 16, 1948? A. That's right. 

Q. Are you still with them? A. I am. 

Q. Where did you come from before you took 
this job? 

A. I was twelve years and some odd months 
superintendent of the Heidemont Canning Company 
at Antioch. 

Q. Were you employed prior to the time that 
you went to work? 

A. I was on leave of absence; I was traveling. 
I traveled. 

Q. Mr. McCuish, you were fairly new to the 
procedure, to the personnel and the environs there 



176 Fibreboard Products, Inc., etc. 

(Testimony of Gordon V. McCuish.) 

at the time that you met Mr. Townsend for the first 

time; isn't that a fact? 

A. I would say no ; I had worked with personnel 
work for over 25 years. 

Q. I mean in the Fibreboard Company; I am 
not talking about your personal experience. You 
were just new in that place yourself, isn't that the 
fact? 

A. I came in there in September, '48, but I 
wasn't new to personnel work, I assure you. 

Q. That isn't what I am asking you, sir. I am 
asking you if the work at Fibreboard, the personnel 
and the surroundings there [182] were all new to 
you; isn't that right? 

A. No; I was taken to San Francisco and 
schooled on that for some time, and also at the 
Antioch Division and at the Stockton Division. 

Q. When did you go to work for the Fibreboard 
Company, Mr. McCuish? 

A. September 16, 1948. 

Q. When did your schooling start with the 
Fibreboard Company? After September 16, 1948? 

A. That's right. 

Q. Where did you spend your first month? 

A. Between San Francisco, the San Joaquin and 
Antioch and Stockton. 

Q. You traveled most of the time, did you not, 
from one place to the other? 

A. Well, I still spent eight hours, or approxi- 
mately eight hours in the office with personnel 
training. 



vs. W. H. Townsend 177 

(Testimony of Gordon V. McCuish.) 

Q. Every day? 

A. Yes, practically every day. 

Q. From September 16, 1948, isn't that right*? 

A. That's right. 

Q. That's right? From that period on? 

A. From that period on. 

Q. You first met Mr. Townsend some time in 
the middle of November, isn't that right? [183] 

A. That's right. 

Q. You had been on the job about two months? 

A. That's correct. 

Q. Do you recall the day that you first saw Mr. 
Townsend? A. No, not the exact date. 

Q. You said that you saw Mr. Townsend in the 
middle of August, did you say? 

A. In the middle of November. I wasn't work- 



ing 

Q. No; I am talking about now the period of 
time of 1949; I am sorry, Mr. McCuish. 

A. It was during the month of August; it could 
have been the forepart of August. 

Q. Or the latter part of August? 

A. I don't recall distinctly. 

Q. At any rate, it was the day that Mr. Town- 
send came over from another plant, isn't that right? 

A. That is correct. 

Q. To be interviewed by Mr. Fuller, was that it ? 

A. That's right. 

Q. And Mr. Townsend told you about his 
brother-in-law, Mr. Fisher; do you remember that? 



178 Fibreboard Products, Inc., etc. 

(Testimony of Gordon V. McCuish.) 

A. I can't say that I am sure I knew Mr. Fisher 
was Mr. Townsend's brother-in-law. 

Q. But he did mention a Mr. Fisher, did he not? 

A. He mentioned a Mr. Fisher, yes. [184] 

Q. Isn't it also a fact that Mr. Fuller that very 
day asked to have Mr. Fisher come down to the 
paper mill plant? [185] 

* * * 

CLAUDE M. STITT 
a witness called for defendant; sworn. 

The Clerk: Would you state your name to the 
Court, please? 

The Witness: Claude M. Stitt. 

Direct Examination 
By Mr. Holmes: 

Q. Mr. Stitt, you are a resident of Antioch? 

A. Yes, sir. 

Q. Have you been for many years? 

A. Yes, sir. 

Q. You are employed by Fibreboard Products, 
Inc. ? A. Yes. 

Q. And have been employed by them for many 
years ? A. Yes. 

Q. You are still employed by them? 

A. Yes. 

Q. Between the month of September, 1948, and 
September, 1949, what was your position ? 

A. Plant manager of the San Joaquin Division, 
Fibreboard Products. 



v*. W. H. Townsend 179 

(Testimony of Claude M. Stitt.) 

Q. Was that the new plant on the outskirts of 
the City of Antioch? A. Yes, sir. 

Q. Do you know the plaintiff here, Mr. W. H. 
Townsend? A. Yes. [188] 

Q. Do you recall when you first met Mr. Town- 
send ! A. Yes. 

Q. Will you state what that occasion was, please ? 

A. I would judge it was about the middle of No- 
vember, 1948, when I was introduced to him by Mr. 
McCuish, our personnel manager, in a sort of hall- 
way. 

Q. What was said on that occasion ? 

A. After the formal introduction, Mr. Townsend 
said "Mr. Claude, here I am, and I think I can do a 
good job for you." 

Q. What did you say? 

A. I told him, "Well, we would have to see about 
that, because at the present time we weren't en- 
gaging any hands other than supervisory staff mem- 
bers." 

Q. What did Mr. Townsend say? 

A. He said he would like to have a job because 
he was very low on finances. 

Q. Did you reply to that? 

A. I told him that would have to be cleared 
through the personnel department. 

Q. Anything else said in that conversation? 

A. Not as I recall. 

Q. When did you next see Mr. Townsend to 
talk to him? 

A. Oh, other than occasions saying "Hello" 



180 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

when I may have seen him on the street or so, was 
when he had been sent out by the Antioch Division 
to the San Joaquin Division to help us [189] dur- 
ing an emergency that we had during the start up 
on what we term the No. 1 machine. 

Q. When did that take place? 

A. I would say that was about the forepart of 
August, 1949. 

Q. You say Mr. Townsend was sent out there 
from the Antioch Division? 

A. Prom the Antioch Division. 

Q. Working in the San Joaquin Division tem- 
porarily? 

A. Yes, because we had borrowed a few hands 
from them to help with an emergency. We had an 
emergency. 

Q. Do you know about how long he was there? 

A. As I recall it, about two weeks. 

Q. Did you talk to him during that period? 

A. Yes. 

Q. Well, will you state where and when? 

A. Well, other than just casually saying " Hello " 
and "Good morning/' passing by, there is one 
specific occasion that I recall. He stated that he 
had been elected a delegate to the labor convention 
and that he was very proud of having been elected. 
And the other occasion that I recall that he asked 
me if 

Q. Was this other occasion when you talked to 
him during this same two weeks period ? 

A. Yes. 



vs. W. H. Townsend 181 

(Testimony of Claude M. Stitt.) 

Q. Where did you talk to him on this second 
occasion? [190] 

A. It was on what we would term the machine 
room main floor. 

Q. What was said in this next conversation? 

A. After the usual good morning and "How 
are you," he stated that he had heard that some 
of the employees had received transportation costs 
and reimbursement for what they had put out. He 
wanted to know if that was true. I told him "Yes," 
that was true. 

Q. What did he say then? 

A. And he asked, well, when he was to get his. 
My reply to that question was that as of the present 
time he had no basis to receive any because of two 
facts: One, he was not on the payroll of the San 
Joaquin Division; the second being that he had 
come out on his own from the east, and that we 
hadn't compensated any individual for that; it was 
only when we had made previous commitments to 
cover any transportation costs that we were reim- 
bursing for it. 

Q. Is that the first time that you had ever talked 
to Mr. Townsend about that particular matter? 

A. That is the first and the only time. 

Q. Was there anything else said in that conver- 
sation? 

A. He stated that he had been doing differ- 
ent kinds of w T ork and that he would like to get on 
as a steady employee of the San Joaquin Division. 

Q. What did you tell him? 



182 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

A. I told him that was a problem to be handled 
through the [191] personnel department. 

Q. Anything else said in the conversation ? 

A. Not as I recall. 

Q. When did you talk to Mr. Townsend again 
after that particular conversation ? 

A. As I recall, it was the first Saturday in Sep- 
tember of 1949. 

Q. And what was the occasion? 

A. I had received a call from a Mr. Colter, 
Standing Committee Member of Local 249, Inter- 
national Brotherhood of Pulp, Sulphite and Paper 
Mill Workers at the Antioch Division asking if I 
could see him and Mr. Townsend that morning. I 
told him yes, and they came out, and Mr. Townsend, 
I could readily see, if I may use a slang expression, 
was somewhat "Hot under the collar"; and he 
stated he would like to get at the root of all the 
accusations that had been made and why he had 
been fired — he had not been given a job at the San 
Joaquin Division. 

Q. Did he say where he had been fired? 

A. He stated that he had been fired from both 
Divisions. 

Q. What did you say to him I 
A. I told him I couldn't answer relative to what 
had taken place at the Antioch Division, because 
that was a matter completely out of my hands; I 
didn't have any of the facts pertaining to it. I 
further told him that it was impossible for him to 
use the word about having been fired from the 



vs. W. H. Townsend 183 

(Testimony of Claude M. Stitt.) 

San [192] Joaquin Division because he wasn't on 

the San Joaquin Division payroll. 

He then stated well, in addition to being fired, 
as he insisted upon it, he had also not turned down 
a job — which I had asked him as to why he had 
turned the job down. 

Q. You asked him why he had turned a job 
down? 

A. Yes, because I had the report from our per- 
sonnel department that he had refused the position 
of a baler man in the machine room, which he had 
been doing, or helping on it, during the period 
that we had borrowed him from the Antioch Divi- 
sion, and he said he hadn't turned that down, the 
reason being that he already had a job, and since he 
had a job it was impossible to turn down another 
one ; and he made the accusation several times that 
he had been fired from a San Joaquin Division by 
Mr. Lindley, and I kept trying to tell him that 
that would be an impossibility, because he wasn't 
on the payroll of the San Joaquin Division. And 
he asked me then if I would call Mr. Lindley in and 
would settle the matter. I told him that I would 
not prefer to do that, because with the temper of 
the feeling at the time and also that Mr. Lindley, 
due to conditions prevailing in the pulp mill was 
quite busy that morning, but I would take it upon 
myself to investigate what had taken place prior 
to his reporting to me that he had been fired. 

Q. What did Mr. Townsend say to that? 

A. He said, well, if it was all that could be done 



184 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 
at the [193] time it would have to serve, and he 
thanked me for the hearing on that morning, and 
Mr. Colter and he left. 

Q. Did Mr. Colter say anything all during this 
time? A. No. 

Q. How long did the conversation take? 

A. I would say about an hour or an hour and a 
quarter. 

Q. Anything else said that you can remember? 

A. Not specifically at that time. 

Q. When did you talk to Mr. Townsend again 
after that? 

A. Well, a Sunday near the middle of the month 
of September, 1949. 

Q. Where did you talk to him? 

A. At my home. 

Q. Was that on a Sunday afternoon? 

A. Yes. 

Q. How long did Mr. Townsend spend with 
you that Sunday afternoon? 

A. I would say it was practically all afternoon. 

Q. And can you estimate the number of hours 
or minutes? 

A. I would say roughly from about 1:00 until 
a little after 4:00— about 4:30. 

Q. What was the subject of that conversation, 
or subjects, plural? 

A. He had called earlier, wanted to know if I 
would see him. I told him yes, I would see him. 
So he came over. And first [194] of all he inquired 
as to the outcome of my promise to investigate this 



vs. W. H. Townsend 185 

(Testimony of Claude M. Stitt.) 

as he termed being fired by a representative of the 
San Joaquin Division. I told him that I had in- 
vestigated that, and Mr. Lindley had told me very 
explicitly that he hadn't told Mr. Townsend that 
he had been fired; that he had told Mr. Townsend 
that he hadn't counted on using him in his depart- 
ment — that is the pulp mill department — the rea- 
sons being that after investigation of his qualifica- 
tions and suitability, he felt that, out of a number 
of applicants he had had, he had better men for 
the positions involved. 

I also told him that I had talked to the late Mr. 
Fuller relative to the matter of him being offered 
a position by Mr. Fuller in what we would term 
the board mill department, and Mr. Fuller had 
stated that Mr. Townsend had refused to accept 
a job on the background that he had had a job over 
at the Antioch Division which was paying him more 
money, and since he had the job already, he would 
like to have Mr. Fuller take it up with the per- 
sonnel department to see if a Mr. Fisher couldn't 
be given that position. 

The next main topic of the conversation was Mr. 
Townsend offered a severe criticism of the officials 
of Local 240 International Brotherhood of Pulp, 
Sulphite and Paper Mill Workers. My reply to 
that was, well, if everything was true as to what 
he had been telling me, that maybe his criticism 
was just and maybe it wasn't just; but if he felt 
something was [195] wrong, he should take it up 
with the authorities of the Union involved and not 



186 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 
blame representatives of Fibreboard, or take up 
their time on it. He said that he would be carry- 
ing through on that matter. 

And the rest of the afternoon was spent by Mr. 
Townsend outlining to me what he had did, giving 
evidence to show positions that he had held, various 
data that he had accumulated, different cards that 
he had had to show what he had been doing before 
that, 

Q. You mean there were documents or papers 
that he showed you"? 

A. They were papers, cards, and so forth. 

Q. How did he bring those? How were they 
carried % 

A. He brought them over in a brief case. 

Q. Did he physically show them to you on that 
afternoon 1 

A. Yes, he laid them out all over the floor. 

Q. How long did that particular part of the 
discussion take? 

A. I would say roughly about two hours. 

Q. Was there anything else on this Sunday 
afternoon discussion that you can recall? 

A. No, sir. 

Q. You referred to Mr. Fuller as the "late Mr. 
Fuller/' I believe. Will you state when he died? 

A. Early in 1950, as I recall it. 

Q. Did you have occasion to talk to Mr. Town- 
send again after [196] this Sunday afternoon? 

A. Yes. 

Q. Will you state approximately when? 



vs. W. H. Townsend 187 

(Testimony of Claude M. Stitt.) 

A. As I recall, it was in October of 1949. 

Q. Where? 

A. He came out to the plant, and I think the 
first day that he came one of the officials of the 
concern was there, which I told Mr. Townsend I 
was tied up with and he said, "Well, I will be 
back tomorrow or the next day or so." And within 
the next day or so he came back, and after the usual 
"Hello" and "How are you" he asked if there 
was any reason why he could not be given a job at 
the San Joaquin Division. I told him as far as I 
was personally concerned at that time there wasn't 
any; but it must be borne in mind that he had 
already refused one position that had been offered 
to him, and that based on the criticism that had 
been referred to by Mr. Townsend, the Department 
heads would want to study very carefully before 
they would offer him one, and he said that was all 
right, he felt that they would work out all right. 

Then he also asked if I would talk to Mr. McCuish 
to see if there was any reason — if the personnel 
department had anything that would bar him from 
seeking employment in the San Joaquin Division. 

Q. How r long did this conversation take? 

A. I would say roughly about 20 minutes or 
half an hour. [197] 

Q. And this was in your office? 

A. Right. 

Q. Did you have any other discussions with Mr. 
Townsend after that time? 

A. Well, we would meet occasionally on the 



188 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

street and say " Hello" and he would ask as to how 

things were going. He would tell me that he was 

still interested in getting a job at the San Joaquin 

Division. 

Q. Did you ever tell Mr. Townsend that he was 
denied employment because of rumors? 

A. No, sir. 

Q. Or stories about him? A. No, sir. 

Q. Among other things, when Mr. Townsend 
talked to you on this Sunday afternoon, did he 
mention he had been an organizer for the Pulp 
and Sulphite Paper Mill Workers Union? 

A. Yes, sir, he did. 

Q. Is there a collective bargaining agreement 
at this San Joaquin Division plant? 

A. Yes. 

Q. With what Union is that agreement? 

A. It is with two unions. International Brother- 
hood of Pulp and Sulphite Paper Mill Workers, 
and International Brotherhood of Paper Makers. 

Q. Is the International Brotherhood of Pulp 
and Sulphite [198] Paper Mill Workers the same 
union that Mr. Townsend told you he had been a 
representative of? A. Right. 

Q. Do you know the approximate date when 
the first collective bargaining agreement was en- 
tered into at that plant? 

A. As I recall, it was the forepart of July, 
1949. 

Q. Did you have some of your crew hired at 
that time? 



vs. W. H. Townsend 189 

(Testimony of Claude M. Stitt.) 

A. Yes, as far as the No. 1 machine crew, the 
semi-chemical pulp mill crew, or the yard crew, 
the power plant, and most of the maintenance crew, 
and part of the hands for the recovery boiler crew, 
they were on the job. 

Q. Was that a large portion? 

A. I would say he had roughly 70 per cent 
or more of the total number of hands needed for 
the plant at that time. 

Mr. Holmes: I think that is all. 

The Court: You may cross-examine, Mr. Garry. 

Cross-Examination 
By Mr. Garry : 

Q. Mr. Stitt, how long have you been with the 
Fibreboard Products Company? 

A. Counting there and one of the other prede- 
cessor companies, ever since December of 1924. 

Q. How long have you been in a supervisory 
or managerial capacity? 

A. From December of 1927, in what we term — 
I was supervisor and manager of a department. 
In July of 1946, I took over the [199] manager- 
ship of what we term the Antioch Division, or 
January 1st, that was, 1946. 

Q. What are you doing at the present time? 

A. I am Manager of what they term the Cen- 
tral Engineering Division. 

Q. In Antioch? A. Antioch. 

Q. That includes both plants, does it? 



190 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

A. That includes all the plants and subsidiaries 
of Fibreboard. 

Q. Are you familiar with the ad that appeared 
in the various trade journals that Mr. Townsend 
saw? 

A. I am familiar with the ad that appeared in 
one trade journal, and that was the Southern Pulp 
& Paper Manufacturer. 

Q. Do you recall what was in that ad? 

A. I don't recall the wording; I recall the gist 
of it. 

Q. The gist of it is good enough. 

A. It was to the effect that a pulp mill would 
be opening on the Pacific Coast at some approxi- 
mate date, and parties interested should communi- 
cate with box certain number of the Southern 
Pulp & Paper Manufacturer. 

Q. And in response to that ad — how long did 
you run that ad? 

A. Two months, as I recall. 

Q. Two different issues, isn't that right? [200] 

A. Yes. 

Q. How many people did you need at that 
time? A. I would say about 300. 

Q. You needed 300 people. And these were 
more or less experienced people that you were 
asking for? 

A. May I add to that? Because we hadn't 

Q. I don't want to cut you off. 

A. Because we hadn't engaged anybody other 
than certain key supervisorial staff at that time. 



vs. W. H. Townsend 191 

(Testimony of Claude M. Stitt.) 

Q. You needed 300 people when you put the 
ad in there, isn't that right? A. Yes. 

Q. You did receive a communication from Mr. 
Townsend, did you not? A. Yes, sir. 

Q. And you replied to him on the first day of 
September, 1948? A. That's right. 

Q. You replied to him yourself? 

A. That's right. 

Q. Were there any other communications from 
other paper and pulp mill men who corresponded 
with you at that time? 

A. Along about that time or a little later we 
had a large number of them. 

Q. I say about that time, say the first of Sep- 
tember of 1948? A. Yes. [201] 

Q. Hoav much correspondence did you receive, 
do you recall, in reference to the ad that you had 
looking for paper and pulp mill men? 

A. I don't recall the exact number, but there 
were quite a few. 

Q. Would you say there were 10 or 20? 

A. I would say there was nearer 70. 

Q. About 70? And you had 300 openings for 
jobs, isn't that right? 

A. At that time, roughly speaking. 

Q. So when you wrote this letter to Mr. Town- 
send on the first day of September, 1948, you had 
openings for 300 men; isn't that correct? 

A. That's right, because we hadn't made com- 
mitments to certain people who we had in mind 
making commitments to. 



192 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

Q. You were quite anxious to get hold of men 
like Townsend, from what you had seen in his 
application? 

A. May I answer the question in this way 

Q. Answer it in any way you like. 

A. We were quite anxious to get the best quali- 
fied men we could to fill every position in the mill 
that was still vacant. 

Q. On the first day of September when you 
wrote him the letter and with it returning his 
qualifications or the recommendations from the 
North Carolina Pulp Company, you were satisfied 
that a man like Townsend, from what you had seen 
so far, was someone that you wanted to pursue 
further; isn't that right? [202] 

A. Yes, we were desirous of investigating him 
further. 

Q. What did you do pursuant to that investiga- 
tion? 

A. The matter was turned over to the pulp 
mill superintendent, Mr. Lindley, and our per- 
sonnel department, with instructions that they check 
the references, the background of what we would 
term his suitability from past record and to see 
if the statements made, as far as we could ascer- 
tain, in his application were correct. 

Q. Mr. Stitt, when did you tell Mr. Lindley 
that? A. On his arrival. 

Q. On the first day of October, 1948? 

A. No; I would say it may not have been the 



vs. W. fiT. Townsend 193 

(Testimony of Claude M. Stitt.) 

first day, but I would say it was either that day 

or immediately afterwards. 

Q. Did you make any particular comments on 
the Townsend application to Mr. Lindley? 

A. Not any more than would pertain to any 
other application. 

Q. At the time of October 1st how many open- 
ings did you have for the new pulp mill? 

A. I can't answer the question because I don't 
know how many openings w T e had at that time that 
were still vacant. 

Q. You did mention on direct examination that 
on or about July, 1949, you entered into a collec- 
tive bargaining contract with the bargaining union ; 
isn't that correct? A. That is right. 

Q. Now at that time you said you had filled 
your capacity to [203] the tune of about 70 per 
cent? A. That's right. 

Q. You still had openings for 30 per cent, isn't 
that correct? A. Roughly that. 

Q. How big a staff is there in that mill ? 

A. Slightly over 400, I would say. 

Q. In other words, you had about 280 filled? 

A. That's right. 

* * * 

Q. Isn't it part of Mr. Lindley's duties to know 
how many men should be working in the mill, how 
many men he needs? 

A. As superintendent, the answer is yes. [204] 



194 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

Mr. Garry: Did you ever bother, Mr. Stitt, to 
investigate yourself the references that Mr. Town- 
send sent to you? 

A. Not until after we got in the turmoil with 
Mr. Townsend. 

Q. What do you mean by "turmoil, 7 ' sir? 

A. After Mr. Townsend came out and made the 
accusations that Saturday morning, then I took 
it upon myself to make a thorough investigation. 

Q. May I ask you the question, what Saturday 
morning? 

A. I think it was the first Saturday of Sep- 
tember, 1949. 

Q. The first Saturday. Is this the accusation 
you are talking about where he came there with 
the Union representative? A. That's right. 

Q. That is the time that you, yourself made a 
complete investigation? A. That's right. 

Q. Up to that time you had made no investiga- 
tion; is that right? 

A. I personally hadn't. The matter had been 
referred to the personnel department, to the de- 
partment heads. 

Q. Who is Mr. Van Voorhis? 

A. The plant engineer at the Antioch Division 
of Fibreboard. 

Q. As I recall, Mr. Stitt, you said that in July 
your plant, the paper pulp mill, was filled to the 
capacity of 70 per cent ; [205] that is correct, is 
it not? 



vs. W. H. Townsend 195 

(Testimony of Claude M. Stitt.) 

A. I didn't specifically state the pulp mill; I 
said the plant requirements. 

Q. The plant requirement was 70 per cent. 
What was the paper pulp mill requirement ? 

Mr. Holmes: That term was ambiguous and 
inaccurate, your Honor. There is no paper pulp 
mill ; there is a paper mill and a pulp mill. I think 
that is clear from the evidence already. 

The Court: I think he wants to know about 
the pulp mill. Is that what you want to know? 

Mr. Carry: That is right. 

A. I haven't records to state what the per- 
centage was as far as the pulp mill is concerned. 

Q. Were you filled to capacity in July, 1949? 

A. I would say no, but I just stated now that 
I haven't the records to base a reply as to any 
estimate or percentage. All I can say, it was largely 
filled, but what the percentage was I couldn't say. 

Q. You said that because of this interview 
you had with the business agent on the first Sat- 
urday in September that you, yourself, made an 
investigation ? 

A. May I make a correction? The interview 
wasn't with the business agent; the interview pri- 
marily was between Mr. Townsend and myself. A 
member of the standing committee sat [206] there 
without saying a word. 

Q. He was there, was he not? 

A. He was there. 

Q. He was there in an official capacity, was he 
not, Mr. Stitt? A. I presume that he was. 



196 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

Q. You said that you personally made an in- 
vestigation? A. That's right. 

Q. And in your investigation did you find that 
there had been any check up of any of the refer- 
ences furnished by Mr. Townsend? 

A. Yes, sir. 

Q. What did you find? What check-ups had 
been made? 

A. The one specifically that I recall that we 
had written to the parties that he had given as the 
reference, the Gulf States Paper Company. 

Q. Yes. 

A. And we had a report which was contrary 
to what Mr. Townsend had given us in connection 
with his experience with the Gulf States Paper 
Company. 

Q. When was that inquiry made % 

A. I don't recall any exact date; that was 
handled through the personnel department. 

Q. As a matter of fact, this information was 
gotten after all this so-called turmoil you are talk- 
ing about; isn't that a fact, [207] Mr. Stitt? 

A. No, sir, not as far as I am concerned, be- 
cause investigations will prove, as far as my in- 
vestigation showed, that we had data on Mr. Town- 
send prior to this turmoil condition. 

Q. It is your testimony, then, Mr. Stitt, that 
these so-called inquiries were made prior tp the 
turmoil date? 

A. I won't state that every one of them was, but 
I will state that they were made — that is at least 



vs. W. R. Townsend 197 

(Testimony of Claude M. Stitt.) 

a part of them, prior to the time September 3, 

1949. 

Q. But you don't know when? 

A. That's right, because I haven't the informa- 
tion available. 

Q. Then how do you account for the fact that 
on September 2nd after the first Saturday that 
we are talking about you had one of your repre- 
sentatives send a letter to Mr. Townsend notify- 
ing him that he had turned down a job in your 
plant, in the paper mill plant — in the paper mill 
division ? 

A. I don't think your statement is correct that 
one of my representatives wrote a letter telling him 
that he had turned down a job. 

Q. Isn't Mr. Van Voorhis a man under your 
jurisdiction? 

A. No, sir; as I have said earlier in my testi- 
mony, he is the plant engineer at the Antioch Divi- 
sion. I have no direct supervision over Mr. Van 
Voorhis. 

Q. None whatsoever? 

A. None whatsoever. [208] 

* * * 

Q. (By Mr. Garry) : Bid you or anyone under 
your jurisdiction pass on this information that 
Mr. Townsend had allegedly turned down a job 
on the 31st day of August, 1949, to Mr. Van Voor- 
his, or anyone else in the plant down there? 

A. I personally wrote a letter to Mr. Sanford, 



198 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 
who was then manager of the Antioch Division 
which was to the effect that he had turned down 
a position which had been offered to him at the 
San Joaquin Division. 

Q. You are the one that did that? 

A. That is right, [209] 

* * * 

Q. (By Mr. Garry) : In the course of your 
investigation you found that Mr. Townsend at one 
time had organized a group of foremen in the 
paper industry, did you not? A. Yes, sir. 

Q. And you also know that that case went to 
the National Labor Relations Board, do you not? 

A. I have no knowledge of it. 

Q. Your investigation didn't bring that out? 

A. I had personally had no knowledge of it 
going to any National Labor Relations Board. 

Q. Mr. Stitt, on the Sunday that you are now 
talking about, the Sunday that you said he spent 
four hours at your home, didn't you tell him that 
" Townsend, the trouble with you is that [210] 
you are too good a union man?" 

A. I did not tell him that. 

Q. You are sure you didn't tell him that? 

A. Absolutely sure. I told him what I have 
stated earlier. 

Q. Didn't you also tell him, Mr. Stitt, or try 
to tell him that the Union was trying to get your 
job? Didn't you tell him that? A. I did not. 

Q. Didn't you in that four hour conference try 



vs. TV. H. Townsend 199 

(Testimony of Claude M. Stitt.) 

to get Mr. Townsend to file a suit against the 

Union ? 

Mr. Holmes : Your Honor, these matters I think 
are totally immaterial. Apparently counsel is try- 
ing to lay some foundation here for some contro- 
versy between the Company and the Union or the 
Plaintiff and the Union, or the Plaintiff and the 
Company, based on the National Labor Relations 
Act, which is totally immaterial. 

Mr. Garry: I might add that I didn't bring up 
this question now, because they brought it up in 
his direct examination. He said he spent two hours 
discussing unionism. I didn't bring it up. 

The Court: Let me say this: I think the line 
of questioning is material because it goes to the 
frame of mind of Mr. Stitt here who occupies a 
position of supervision in the plant, and he is the 
one who may or may not have had a part in en- 
tering into this contractual relationship and the 
termination of any [211] rights that Mr. Townsend 
may or may not have had. 

Mr. Holmes: I submit, your Honor, Mr. Stitt ? s 
frame of mind in September after Mr. Townsend 
had been told he was not going to be employed is 
immaterial. 

The Court: Well, the matter was still under 
consideration, and I think that you have to hear 
the whole story. Whatever Mr. Stitt 's story is, 
I want to hear it. 

Mr. Garry: If your Honor please, I might 
also add, bearing in mind this exhibit we have 



200 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 
offered, Exhibit No. 4, signed by Mr. Van Voor- 
his, Plant Manager, Antioch Division, who isn't 
even under this man. 

Mr. Holmes: He is plant engineer, not Plant 
Manager. 

Mr. Garry: Plant Engineer. 

The Court: The point is I don't want to have 
the case argued now. I was a little bit in error 
when I spoke of his frame of mind. I am inter- 
ested in what the fact is, what he told Mr. Town- 
send, and what Mr. Townsend told him. On this 
subject I am going to allow counsel to cross- 
examine on it. He apparently has knowledge of 
what occurred there, and I want to hear the story. 

Mr. Garry: Now, Mr. Stitt, you say you had a 
conversation some time in the middle of August 
with Mr. Townsend when he was out there doing 
janitor work in your plant; is that right? 

A. That's right. 

Q. That is when you said that you had this 
emergency and you [212] had to have him. Do 
you recall having a conversation with him at that 
time in reference to transportation? 

A. Yes, sir, I have so testified. 

Q. Isn't it a fact that Mr. Townsend said to 
you, "Mr. Stitt, I have been waiting a long time 
for that recovery job. Now I have also been wait- 
ing a long time for my transportation fare; when 
do I get it?" and isn't it a fact that you told him 
just as soon as the recovery department opened 
up and he went to work there he would get his 



vs. W. H. Townsend 201 

(Testimony of Claude M. Stitt.) 

transportation at that time? Isn't that the fact? 

A. The answer to that is "No." I will repeat 
again, as far as I recall the conversation, Mr. 
Townsend stopped me and asked me if it was true 
that certain individuals had received compensa- 
tion for their transportation, and I told him the 
answer to that was yes. And he said "When do 
I get mine?" And I told Mr. Townsend that under 
two contentions he was not entitled to any con- 
sideration for a transportation rebate because, in 
the first place, on that particular day he was not 
an employee of the San Joaquin Division, and that 
no commitment had been made to him and he had 
come out here on his own. 

Q. Isn't it a custom for the Company to be 
paying the transportation of delegates to union 
conventions? A. No, sir. [213] 

* * * 

The Court : Did you pay the expenses of a dele- 
gate to the convention? 

A. The Company has never paid the expenses 
of any delegate to any convention. 

Q. (By Mr. Garry) : Then will you kindly, Mr. 
Stitt, go over the conversation you had with Mr. 
Townsend relative to the discussion of transporta- 
tion? 

A. He stopped me on what we term the machine 
room floor and propounded the question to me, 
"Is it true that certain individuals have received 
compensation for what they have been out relative 
to transportation costs?" I told him "Yes." He 



202 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 
said, "When am I going to get mine?" I told Mr. 
Townsend he wasn't entitled to compensation be- 
cause of two facts, one being that he was not as 
of that date an employee of the [214] San Joaquin 
Division; the second being that he had come out 
here on his own and we had made no commitment 
to him relative to compensating him for his trans- 
portation costs. 

Q. On the date August 14, 1949, Mr. Stitt, how 
did you know whether you had made any commit- 
ments to him or not when you have already testi- 
fied that you didn't go into all this record until 
after the turmoil started some time in September? 

A. Because when Mr. Townsend showed up I 
asked our personnel man and Mr. Lindley if they 
had made any commitments to him. The answer 
to that was "No" by both parties. 

Q. When did you ask him that, Mr. Stitt? 

A. The day that I was first introduced to Mr. 
Townsend. 

Q. What day was that? 

A. I would say that was about the middle of 
November of 1948. 

Q. I call your attention to a letter dated October 
19, 1948, signed by Mr. Lindley addressed to Mr. 
Townsend and ask you if you had ever seen that 
before the date August 14, 1949? 

A. I have seen a copy of it, 

Q. You saw that before August 14, 1949? 

A. Yes, a copy of that. 

Q. What day did you see it, sir? 



vs. W. H. Townsend 203 

(Testimony of Claude M. Stitt.) 

A. The day after it was mailed out. I saw 
the copy the day after it was mailed out. [215] 

* *- -* 

Q. If you saw it the very next day after it 
was sent out, why did it take you so long to an- 
swer the question if you had seen it before August 
14, 1949? 

A. Because I wasn't sure as to whether you 
stated 1948 or 1949; that is why I was thinking 
as to whether to answer right off hand, as to 
whether I had heard correctly '48 or '49. 

Q. Mr. Stitt, there wouldn't be any object in 
my saying August, 1948, because you didn't hear 
of this man in August, 1948, did you? 

Mr. Holmes: Your Honor, I don't think argu- 
ment with the witness is proper. 

The Court: That is argument. 

Mr. Garry: During this period of your adver- 
tising in this trade journal, Mr. Stitt, how many 
people did you contact and employ in your pulp 

mill? [216] 

* # * 

The Court: The number of people that they 
hired and employed during that time is imma- 
terial; but I am concerned, too, or I do want to 
know what response he got from that advertise- 
ment. Like undoubtedly Mr. Townsend answered 
in response to that, did you have many others that 
you know of? 

Mr. Garry: He has already testified, if your 
Honor please, he got about 70. 



204 



Fibreboard Products, Inc., etc. 



(Testimony of Claude M. Stitt.) 
The Court : Is that correct % 
A. Yes, we got a very good response. 

* •* * 

Q. (By Mr. Garry) : How many of those 70 
men did you hire, Mr. Stitt? 

A. I haven 't any data on hand to tell you the 
exact number. 

Q. Did you pay the transportation costs of 
those other men who came there? 

Mr. Holmes: Your Honor, it is immaterial 
whether they paid transportation costs of anybody 
else, which would necessarily depend upon the 
arrangement with those other people. 

The Court: If there were others. 

Mr. Holmes: I think if he is going to go into 
that, we may have to go into every employment for 
all those people. 

The Court: I know it opens a wide field, but I 
think he is entitled to go into the policy they fol- 
lowed. Mr. Stitt [217] has testified that they paid 
some transportation expenses. What transporta- 
tion expenses they paid, what policy they followed 
on it, I think is a proper subject of examination. 
Answer the question. 

Will you read it to him, Mr. Reporter. 



The Court: You are referring to the 70 or 
approximately 70 people that he said responded 
to the advertisement; isn't that correct, Mr. Garry? 

Mr. Garry: That is right, sir. 

A. The answer to that is "No; we didn't pay 



vs. W. H. Townsend 205 

(Testimony of Claude M. Stitt.) 

the transportation of everybody that answered 

the ad." 

The Court: Did you pay it to anyone that you 
know of? 

The Witness: I would say "yes" to that, be- 
cause we had established a policy that parties in 
certain key positions who we made commitments 
to, it was understood before they left that we 
would compensate them for their transportation. 

The Court: In other words, in some cases you 
had commitments for transportation? 

The Witness: Yes, that was all definitely un- 
derstood before the parties left their homes and 
moved up here. 

The Court: Any further questions? 

Q. (By Mr. Garry) : How was this understand- 
ing arrived at? [218] 

A. In some cases the parties had come out 
there on their own and made the personal contact 
with us; others through parties that we knew in 
certain instances, who we had asked for infor- 
mation as to qualifications, physically, so on and so 
forth. These we had received information on, how 
we were getting most of it by correspondence. In 
those other cases we had commitments before they 
left. 

Q. In other words, these other men that you 
brought down here were done by correspondence 
also, isn't that right? 

A. Either that or personal contact with us. 

Q. Did you by any chance bring these people — 



206 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

let us take one particular case of a person that 
you hired from without the State of California and 
paid his transportation down here, and let us 
follow the procedure for just a minute. Do you 
recall such a case'? A. Yes. 

Q. You have that particular person in mind. 
Did you have him examined physically before you 
brought him down to California'? 

A. No, we had an understanding with him that 
he came subject to the passing of the physical 
examination; if he didn't pass the physical exami- 
nation it was his risk. 

Q. In other words, then he would have to go 
back? A. That's right. 

Q. Did you also check up on his qualifications 
before he came [219] down? 

A. I have already answered "yes" to that. I 
will answer it again, yes. 

Q. I am somewhat interested, Mr. Stitt, because 
I am trying to find out what happened in the case 
of Mr. Townsend. You received a letter and so 
on. You put your ad in sometime in June or July, 
isn't that right, of 1948? A. That's right. 

Q. And you received about 70 inquiries, isn't 
that right? A. That's right. 

Q. And Mr. Townsend happens to be one of 
them? A. Yes, sir. 

Q. That inquired and sent you communications. 
Now his communication was sent to you on the 
26th day of August. On the first day of September, 
1948, you sent to him a letter signed by yourself 



vs. W. E. Toivnsend 207 

(Testimony of Claude M. Stitt.) 
returning his original reference that he had sent 
to you and you also asked him to sign an applica- 
tion blank, isn't that correct? 

A. That is right. 

Q. Which came to you about the 7th or 8th day 
of September, isn't that correct? 

A. That is right. 

Q. What I am trying to find out — Mr. Town- 
send didn't get down to Antioch until the 15th day 
of November, 1948. What I am trying to find out, 
how long does it take you to investigate [220] an 
application before he comes down to Antioch to 
go to work for your firm? 

A. It depends upon the circumstances and what 
we find out. 

Q. I don't quite understand that answer. Will 
you explain it a little bit more? 

A. When I say "upon the circumstances," we 
may get a report which is contrary to another re- 
port; then we will try to get a third party who 
may not have been given to us by the party in- 
volved, by writing back to somebody in that area 
who has a mill, asking them if they know of any- 
body who was in the employ of the Company, when 
said Mr. "X" was employed by that concern, and 
they in turn give us their report. 

Q. Mr. Stitt, in your experience you have han- 
dled thousands of men and you have had experi- 
ence in leadership ? A. I have handled what ? 

Q. You have got experience in leadership, ex- 



208 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

perience in managing men and also bringing in 

new employees into a firm, haven't you? 

A. That's right. 

Q. You took time, as busy as you are, Mr. Stitt, 
to answer an inquiry put by a man in Tuscaloosa, 
Alabama in a letter dated September 1st and also 
took time to have his recommendation that he had 
sent you from this pulp mill copied and you sent 
the original back. You also told this man, Mr. 
Stitt, that "Mr. Lindley will be on the job about 
the first day of October and [221] he will get in 
touch with you." I take it you had also taken 
opportunity to write to this firm that sent you the 
reference, because I also presume from your ex- 
perience in the industry that you are familiar with 
this company that you had the recommendation 
from; isn't that correct? 

A. Well, I didn't write to the concern, and I 
might explain to you why I personally answered 
the letter. When that inquiry came in- I didn't 
have a persoimel manager at the San Joaquin 
Division. The staff consisted primarily of about 
three or four parties. We had been engaged prior 
to that time in engaging supervisorial staff mem- 
bers, and when Mr. Townsend came into the pic- 
ture there had not been any commitments made 
to any individual and there wasn't for some time, 
to wage earners, relative to transportation. And 
the reason I personally answered the letter first 
was because I did not have a personnel manager; 
we weren't in a position at that time to develop 



vs. W. H. Townsend 209 

(Testimony of Claude M. Stitt.) 
the thing. The personnel manager came in shortly 
afterwards, Mr. McCuish, the personnel manager, 
and Mr. Lindley were then instructed, along with 
the other key supervisorial members, on matters 
of policy, on how to handle bringing in new em- 
ployees. Then after we got our supervisorial staff 
there the question was then settled who was to 
receive — what positions were to receive compen- 
sation for traveling. 

Q. Now, Mr. Stitt, you have already testified 
that on the 20th day of October, 1948, you saw the 
letter that Mr. Stitt [222] had written the day 

after 

A. There is something wrong there. 
The Court: You mean Mr. Lindley, don't you? 
Mr. Garry: Mr. Lindley; I am sorry— that 
letter that had been written by Mr. Lindley to Mr. 
Townsend dated the 19th day of October, 1948, 
you saw it on the day after, the 20th; that letter 
also referred to the telephonic communication on 
the afternoon before. 

The Court: You mean the telephone conversa- 
tion? Is that what you mean? You said telephonic 
communication. 
Mr. Garry: Yes. 

Mr. Holmes: That letter speaks for itself; it is 
in evidence; rehearing it here doesn't make any 
difference. 

The Court: No; he just wants to know if that is 
not a correct resume of the facts. 
Mr. Garry: That is right. 



210 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

The Court: It is preliminary to another ques- 
tion. 

Q. (By Mr. Garry) : Isn't that a correct 
resume of the facts according to your understand- 
ing? A. That's right. 

Q. Did you ask Mr. Lindley at that time if he 
had personally checked up or had done anything 
to check up the references for Mr. Townsend? 

A. I didn't ask him the question, because in 
my position as manager of the plant I saw copies of 
all correspondence that [223] went out. I had seen 
no copy of any correspondence going out relative 
to the party involved. When I received copies I 
asked Mr. Lindley if during his phone conver- 
sation any commitment had been made. The answer 
to that was "No," because he said, "Based on 
your instructions and the policy that we have been 
instructed at our morning meetings, we were not 
to make any commitment to anyone, neither were 
we to make anv commitment until such time as we 

it 

personally investigated all of the references and 
qualifications of the person involved." 

Q. Was it because you read the letter of Oc- 
tober 19, 1948, that prompted you to ask Mr. 
Lindley that question? 

A. Yes, because this was the first batch of 
correspondence that I had seen on it. 

Q. You also know that the man working for 
you, Mr. Lindley, had never been in a supervisorial 
capacity before; you also knew that, didn't you? 

A. That is not correct, because the record will 



vs. W. H. Townsend 211 

(Testimony of Claude M. Stitt.) 

show that he had been in a supervisorial capacity 

at the St. Regis Paper Company. [224] 

* * * 

Redirect Examination 

By Mr. Holmes: 

Q. Mr. Stitt, how many trade journals carried 
this ad for applicants for work? 

* * * 

A. One. 

Q. (By Mr. Holmes) : Was that the Southern 
Pulp & Paper Manufacturer? A. Right. 

Q. When you said you needed about 300 men 
were you referring to any particular department, 
or the w 7 hole plant, or just what were you referring 
to? A. Referring to the plant as a whole. 

Q. How many men were needed in the pulp 
mill? 

A. As to that particular department I have no 
figures that I can recall, as to just how many 
vacancies we had in the pulp [225] mill. 

Q. How many were eventually employed in the 
pulp mill, that is, up to the time you started in 
regular operations? 

A. The question would imply how many men are 
in the pulp mill now. 

Q. How many men did you employ at this time 
it started its regular operations? 

A. I will have to do a little figuring, because 
I don't recall the exact figure. 



212 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 
Q. Can you figure it quickly? 
A. I can tell you roughly. [226] 



The Witness : In round numbers, a rough figure 

would be 70. 

Mr. Garry: May I ask what the question [227] 

was? 

* * ■* 

Q. (By Mr. Holmes) : How many departments 
are there in that mill, Mr. Stitt? 

A. There are the following main departments: 
Pulp mill, board mill, wood mill, maintenance and 
power, and there is the office. 

Q. Is there a department head over each of 
those departments? A. That's right. 

Q. Who is the department head over the pulp 
mill? A. Mr. Lindley. 

Q. Mr. Stitt, in October or November of 1948, 
what was your expectation as to the opening date 
of the mill? 

A. We had hoped to get started the late spring 
of 1949. 

Q. Did you know definitely when it would open? 

A. No. 

Q. Mr. Stitt, I am going to show you two let- 
ters here, one of them on the letterhead of Fibre- 
Board Products, Inc., dated March 11, 1949, and 
another on the letterhead of the Gulf States Paper 
Corporation, Tuscaloosa, Alabama, dated May 23, 
1949, and ask you if you have seen those two letters 
before? A. Yes, I have. 



vs. W. H. Townsend 213 

(Testimony of Claude M. Stitt.) 

Q. There is a stamp in blue letters on each of 
these letters, "May 27, 1949, C.M.S."; "March 
21, 1949, C.M.S."— what does that signify? [228] 

A. It signifies that I have seen the copies of the 
letters then and passed them on to either the file 
or the party involved for further consideration on 
the facts at hand. 

Q. Are those your initials, "C.M.S."? 

A. That's right. 

Q. You regularly stamp letters in that fashion 
that come to your hands? A. That's right. 

Q. And this letter dated March 11, 1949, do 
you know whether that was sent out by Fibreboard 
Products, Inc.? 

A. We have every reason to believe that it was 
because of the similarity in signatures. 

Q. Isn't McCuish's signature on it? 

A. That's right. 

Q. Is that his signature? A. That's right. 

Q. And this letter of May 23, 1949, addressed 
to Fibreboard Products, Inc., that was received by 
the Company? A. Yes. [229] 

* * * 

Q. (By Mr. Holmes) : During the period be- 
tween October of 1948 — make it September, 1948 — 
and September, 1949, was there an investigation 
made as to Mr. Townsend 's qualifications and back- 
ground? A. Yes, there was. 

Q. And would you state the general nature of 
that investigation, how you went about it? 

A. Letters were sent to parties that he had 



214 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

given as references. Letters were sent to differ- 
ent companies that he had worked for. And after 
the receipt of their reply, since there was a conflict, 
we wrote additional letters as to some of the replies 
we got to parties that some of our staff members 
either knew, or some that we didn't know, inquiring 
as to the [232] background of Mr. Townsend. 
Q. Did this cover a considerable period of time ? 

A. It did. 

* #• •* 

Q. One other question about this Exhibit E for 
identification : Is this a letter from Fibreboard and 
also a reply to Fibreboard? A. It is. 

* -3f * 

Recross-Examination 
By Mr. Garry: 

Q. Did you receive any other correspondence 
besides this one from the Gulf States Paper Cor- 
poration, Mr. Stitt? A. Yes, sir. 

Q. Relative to Mr. Townsend 's employment? 

A. Yes, sir. [233] 

Q. Where are they? 

A. At this particular moment, I don't know. 

* * * 

Q. (By Mr. Garry) : Who else have you writ- 
ten to, Mr. Stitt? 

A. I don't recall all the other names that are 
involved at this time. 

Q. Did you ever call the contents of this docu- 



vs. W. H. Townsend 215 

(Testimony of Claude M. Stitt.) 

ment to the attention of Mr. Townsend? 

A. Did I personally? 

Q. Yes. A. No, sir. 

Q. Did you ever have any of your subordinates 
do so? 

A. I understand from rumor that Mr. Lindley 
told me that he did. 

Q. Isn't it a matter of fact that Mr. Lindley 
told you that Mr. Fisher and Mr. Townsend came 
up to his house some time in February and Mr. 
Townsend told him the circumstances involved 
in that particular letter — told him himself? 

A. I haven't any knowledge or any recollec- 
tion of Mr. Lindley telling me of any such event 
taking place. 

Q. You were in the court room yesterday 
throughout the day, [234] were you not? 

A. Yes, sir. 

Q. You heard Mr. Townsend testify to what he 
told Mr. Lindley in reference to the fight he had 
with this man? 

A. Yes, sir, but I don't recall any testimony 
that he went out to Mr. Lindley ? s house and told 

him that. 

* * * 

Q. (By Mr. Garry) : Then, Mr. Stitt, you knew 
a long time prior to this so-called "turmoil" that 
you are testifying to, what was in the recommenda- 
tion from the Gulf States Paper Mill — whatever 
their name is ? 



216 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

A. Yes, sir. 

Q. (By Mr. Garry) : When you testified earlier 
this afternoon when I asked you the question when 
you made an investigation of Mr. Townsend's quali- 
fications, you didn't mention that you already knew. 

A. I stand by what I stated at the time: That 
one part of the evidence involved relative to an 
individual is not convincing enough to make a 
final judgment as to his qualifications for a [235] 

position. [236] 

* * * 

Q. (By Mr. Garry) : Mr. Stitt, there was noth- 
ing in this letter from the Gulf States Paper Cor- 
poration that led you to decide not to hire Mr. 
Townsend, was there? 

A. I think the very best evidence in answer to 
the question is to tell you that he was offered em- 
ployment after that letter was received by the San 
Joaquin Division, by the San Joaquin [237] 
Division. 

Mr. Holmes : Under your jurisdiction % 

A. I, as manager of the plant, in one division. 
The policy of the plant was if one department 
head turned an individual down, that did not bar 
him from working for the Division. 

# * # 

The Clerk: Defendant's Exhibits E and F in 
evidence. 



<V*H FAi hit S.. 
Filed Dfl 1 i 1950 

FlBREBOARD PRODUCTS I^•(Ji^- , '""'^' , •' 



D*»X% Ukrk 



% Gulf Ljtate& reaper Corp. 



^larch 11, 1*49 



ban Joaquin Division 
Antiocn, California 




I .1 .NO. 422-03-9553 

Ur, »• H. To*nsena ^_ is being considered for 

yaenl A' ill you kinily fill out the form on the bottom of this letter 
a return it at your earliest convenience. Any information which you give 
us on this person will be appreciated and held strictly confidential* 

Yours very truly, 
FIBRE30ASD PRODUCTS INC. 
San Joaquin D oar i sic 

V 

Personne 1 JD » i > »ft Ua en t 

Um* of Applicant: ...:•■ «. r. . Xoanscna, b.b.No. ±Z2-G)-y5$} 

Present Address: Aiitxoon. Jaxil'ornla 

Would you consider this applicant for position of Recovery Room 
_ yV/Q ? Please check as to your riewpoints on items below: 

Good Average Poor 

Cnaracter S 

A'J-ity , •* g 

K - . ity to get along with fellow workers «^ 
, in me community fiL* a*^*J~ ^-r* ***^ 

Financial Status: 

Tal Credit standing O 

(b) Dce5 he own his own car? C Yes No 

(c) Does he own his own home? • Yes No 

O 
ter narticipated in community activities? If so, explain 


nal pr-narks: tm'J~ /rt<+~J <^t 9 +**. j /^^a. -n*** c m~.f*~sy fx*~, 
J on 3Z+*+**Ut • *'* ,#* /<.-«S «--»^ ^ • ' 

SELK -ADDRESSED STAMPED ENVELOPE ATTACHED. 




vs. W. H. Townsend 219 

(Testimony of Claude M. Stitt.) 

DEFENDANT'S EXHIBIT P 

Gulf States Paper Corporation 
Tuscaloosa, Alabama 

May 23, 1949. 
Fibreboard Products, Inc., 
San Joaquin Division, 
P. O. Box CC, 
Antioch, California. 

Attention: Mr. T. M. Lindley, 

Pulp Mill Superintendent. 
Gentlemen : 

We have your letter of May 16, 1949, in regard 
to a W. H. Townsend, S. S. 422-03-9553. At the 
time Mr. Townsend left our employ he did not have 
a Social Security Number, but the information 
given in this letter covers a Willie Hugh Townsend. 

Mr. Townsend was employed by this Company 
from March 22, 1929, to July 23, 1935. During his 
period of employment, he served as water tender 
on our Recovery Plant boilers. He also served as 
liquor runner, Evaporator Operator and Concen- 
trator Operator and his services on these jobs were 
entirely satisfactory as an operator. 

His services were terminated because of a definite 
rule which we have in effect relative to fighting on 
company property. Townsend was involved in the 



220 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

breaking of this rule and was, therefore, discharged. 

Very truly yours, 

GULF STATES PAPER 
CORPORATION, 

By /s/ J. M. ARMSTRONG, JR., 

Plant Personnel Director. 
JMA : Jr :dmw 

Received May 27, 1949. 
[Endorsed] : Filed October 12, 1950. 



The Court: Deemed read into evidence. They 
are part of the evidence. You will stipulate that 
they may be deemed read into evidence? 

* * * 

Q. (By Mr. Garry) : In this letter that you had 
Mr. McCuish send out to the personnel manager 
of the Gulf States Paper [238] Corporation, Tusca- 
loosa, Alabama, you set forth in there what this 
man's character was, ability, ability to get along 
with fellow workers, standing in community, finan- 
cial status: (a) Credit standing, (b) Does he own 
his own car? (c) Does he own his own home? 
Has he ever participated in community activities? 
If so, explain nature. Then " Additional Remarks." 
And I presume that you read the additional re- 
marks in this case, did you not, Mr. Stitt? 

A. I did. 



vs. W. H. Townsend 221 

(Testimony of Claude M. Stitt.) 

Q. You are familiar with them now. Would 
you like to see them? (Handing document to wit- 
ness.) " Additional Remarks: This man worked for 
this company from 3-22-29 to 7-23-35, in our re- 
covery plant. His last job was" 

Mr. Holmes: " Evaporator" I think. 

Mr. Garry: " evaporator operator. He was 

discharged for fighting on the job but his work 
ability was good." You read that? A. Yes. 

■* * * 

Q. (By Mr. Garry) : You had found by this 
time, Mr. Stitt, [239] that Mr. Townsend was a 
qualified recovery man in a pulp mill, had you not ? 

Mr. Holmes: That question is ambiguous. By 
what time? 

Mr. Garry: By the time of August 31, 1949. 

A. I can't answer your question directly, because 
in my position I was not a party to pass on the 
qualifications and the recovery department. The 
recovery department has board machines, wood mill 
operator, and whatever it might be. That was up 
to the superintendent of the department, part of 
his responsibility to pass on the qualifications of an 
individual involved. 

Q. Was Mr. Fuller working under your direc- 
tions, Mr. Stitt? 

A. The same as any other department head 
supervisor. 

Q. Who was Mr. Fuller's immediate superior? 

A. Myself. 



222 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

Q. Was it under your direction that Mr. Town- 
send was offered a job by Mr. Fuller in the paper 
mill department? A. No. 

Q. By whose direction was it, sir? 

A. It wasn't anybody's direction that I know of, 
because as I was saying, an applicant, after one 
department head had not seen fit to engage him 
because in his estimation of lack of qualifications, 
the application that was still on file was turned over 
to another department head. 

Q. Did you tell that to Mr. Fuller [240] your- 
self? 

A. No; that was the policy through our person- 
nel department established months and months 
prior to the date there. 

Q. And yet, Mr. Stitt, something that you say 
that you had nothing to do with, how did you hear, 
prior to the time that Mr. Van Voorhis wrote the 
letter of September 2nd, to Mr. Townsend, then 
how did you hear that Mr. Townsend had been 
interviewed by Mr. Fuller on August 31, 1949? 

A. It was reported to me in the personnel de- 
partment, namely Mr. McCuish, that a position had 
been offered to Mr. Townsend, I think it was on a 
Wednesday the latter part of August, and that 
he had seen fit to turn it down. 

Q. When did he tell you that, sir? 

A. Oh, I think it was on the following Thursday. 

Q. On the following Thursday? 

A. After the Wednesday of the interview. 

Q. On the following day ? A. Yes. 



vs. W. H. Townsend 223 

(Testimony of Claude M. Stitt.) 

Q. Then did you immediately contact Mr. Van 
Voorhis at the other plant — I don't know what you 
call the other plant 

Mr. Holmes: Antioch Division, I think the rec- 
ord shows. 

Q. (By Mr. Garry) : Antioch Division plant. 
Did you call that plant immediately yourself? 

A. No, sir, I had no contact with that plant 
at all. 

Q. I thought you testified earlier that you told 
Mr. Van Voorhis that Mr. Townsend had turned 
down a job on August 31st? [241] 

* * * 

The Court: Who did you notify, if anyone? 
A. I wrote a letter to the plant manager, Mr. 

Sanford. 

* * * 

Q. (By Mr. Garry): When did you do that? 
That is what I am trying to find out ? 

A. I think it was on the Thursday after this 
Wednesday, which would be probably the last 
Thursday in August. 

Q. What was your interest in writing that letter, 
Mr. Stitt? 

A. The reason the letter was written, because I 
had a telephone call from Mr. Sanford asking as to 
whether we had any further need for Mr. Town- 
send 's services. The letter speaks for itself. It 
is to the effect that Mr. Townsend had been offered 
a position [242] and he had seen fit to turn it down 



224 Fibreboard Products, Inc., etc. 

(Testimony of Claude M. Stitt.) 

and at that particular moment they could do what 

they wanted with him. 



Mr. Holmes: Your Honor, there is this matter 
of the interrogatories, questions propounded both 
by counsel for the defendant and counsel for the 
plaintiff, to Mr. Utley. 

The Court: I have read them. 

Mr. Holmes: And there is a stipulation signed 
by the parties pursuant to which the interrogatories 
were submitted to Mr. Utley. I want to offer the 
stipulation and the questions on both direct and 
cross-examination, and the answers on both direct 
and cross-examination in evidence at this time. 

The Court: Is there any objection to that, Mr. 
Garry? [243] 

Mr. Garry: No objection, your Honor. 

The Court: All right; the stipulation and the 
interrogatories both on direct and cross-examina- 
tion 

Mr. Holmes: And the answers. 

The Court: and the answers will be ad- 
mitted into evidence and are deemed read into the 
record. 



vs. W. ff. Townsend 225 

W. H. TOWNSEND 

the plaintiff, recalled in rebuttal. [244] 

* * * 

Direct Examination 
By Mr. Garry: 

Q. Mr. Townsend, do you recall visiting Mr. 
Lindley at his home? 

A. Yes, I visited him at his home one time. That 
was on February 8, 1949, and that is the only time 
I have ever been to Mr. Lindley 's home. That was 
in the presence of Mr. Carl R. Fisher, who is now 
working as a boilermaker for the Southern Pacific 
Railroad at Gerber, California. In the presence 
of Mr. Fisher I had a conversation with Mr. 

Lindley. 

* * * 

Q. (By Mr. Garry) : What conversation did 
you have with him? 

A. I asked him to give Mr. Fisher a job as 
first helper on the recovery boiler; told him that 
Fisher had worked at Tuscaloosa for the North 
Carolina Pulp Company and had been carrying a 
card as a boilermaker since 1918, and he was a 
union [245] boilermaker and a good man, he was 
my brother-in-law. 

Q. Did you discuss anything else with him ? 

A. Mr. Lindley asked me at that time why I 
left the Gulf States Paper Company, and I told 
him the same as I have told the Court here in the 
early part of the testimony; a man told me to kiss 
his ass one day, and I told him that where I 



226 Fibreboard Products, Inc., etc. 

(Testimony of W. H. Townsend.) 
come from people didn't tell other people that, 
and I knocked him down. Then I called Charlie 
Barlow ( ?) who at the present time is superintend- 
ent at the Gulf States Paper Company. 

Q. Did you tell him all this? 

A. I told Mr. Lindley that. I told Mr. Lind- 
ley 

Q. Go ahead. 

A. Mr. Lindley said " Under the same conditions 
I would probably do the same if a man had told 
me to kiss his ass." I said, "As soon as I knocked 
him down, I knew the policy of the Company was 
to fire anybody for fighting, so I immediately 
picked up the telephone and I called Charlie 
Barlow ( ?) and said I had knocked the man down." 
He said, "How about staying until the end of the 
day*?" I said "0. K." I went ahead and worked 
until 2:00 o'clock. At that time we were working 
six hours a day. 

Q. Had you been working for the Antioch Divi- 
sion right up to that time? 

A. September 2nd. 

Q. And who did you work under there? [246] 

A. I worked under Mr. Walcott was the Master 
Mechanic and Mr. Van Voorhis was the plant 
engineer I worked under. He was my big boss, 
Mr. Van Voorhis. 

Q. You worked under him, did you not? 

A. Yes, sir, from the 22nd day of November, 
1948, until the 2nd day of September, 1949. 



vs.W.H.Townsend 227 

(Testimony of W. H. Townsend.) 

Q. (By Mr. Garry) : When did you go to work 
when you got to Antioch ? 

A. I arrived here on a Monday night and I 
went to work on Tuesday of the next week, to the 
best of my recollection, either the 22nd or 23rd 
of November, 1948, for the Antioch plant. 

Q. What date was the election of the Union 

delegate to the [247] conference up north? 

A. August 3rd. 

* # * 

Q. (By Mr. Garry) : When is the first time 
that you ever had anyone tell you that you weren't 
going to be hired in the pulp mill ? 

A. On Sunday, August 28, 1949, I was told by 
Mr. Lindley in the personnel manager's office, Mr. 
McCuish's office [248] 

* -X- * 

Q. (By Mr. Garry) : That was the first and 
only time? A. That's right. 

Q. That was the first time you had ever had 
anybody tell you that your application would not 
be considered, is that right? 

A. That is the only time I was told at the San 
Joaquin. I was notified September 2nd then that 
I had no job at the Antioch mill. 

Q. You Were let out there too? 

A. That's right. 

Q. And in this conversation you had with Mr. 
Stitt on August 14, 1949, with reference to trans- 
portation — will you give that to us again ? 

A. I was sweeping out in the paper mill that 



228 Fibreboard Products, Inc., etc. 

(Testimony of W. H. Townsend.) 
day, I was sweeping in the ma-chine room, and talk- 
ing to Mr. Stitt. I told Mr. Stitt, I says, "This is 
August 14th. I came out here the 15th of last 
November." I told Mr. Stitt that I had come there 
at Antioch the 15th of November, 1948, and I said, 
"Now it is the 14th of August." I said, "I am a 
man of 20 years experience" — I was pushing a 
broom — "I was general foreman in charge of pro- 
duction for a few years." I said, "I am willing to 
push a broom." I says, "I will shovel crap; I am 
a man that will do anything that you want, but," 
I says, "I would like to know when I am going to 
get transportation, because some of these boys have 
gotten their money." I says, "I have been told 
that." He says, "You can't get your money [249] 
because you never went to work for the San 
Joaquin Division." He says, "You are working for 
the Antioch Division; we don't have any jurisdic- 
tion there." I says, "Yes, sir." He says, "It will 
only be a little while until you are an operator in 
the recovery room over here. Whenever you start 
on the Company's pay roll at the San Joaquin 
Division, then we will give you transportation from 
Tuscaloosa, Alabama, to Antioch." 
Mr. Garry : No further questions. 

Cross-Examination 

By Mr. Holmes: 

Q. Did he say what transportation he would 
pay? 



vs. W. H. Townsend 229 

(Testimony of W. H. Townsend.) 

A. He said he would pay my transportation 
expense from Tuscaloosa, Alabama, to Antioch; 
there was no commitment for any certain amount 
or anything; he just said my transportation would 
be paid for me and my family. 



[Endorsed] : Filed August 3, 1951. [250] 



[Title of District Court and Cause.] 

CERTIFICATE OF CLERK TO TRANSCRIPT 
OF RECORD ON APPEAL 

I, C. W. Calbreath, Clerk of the United States 
District Court for the Northern District of Cali- 
fornia, do hereby certify that the foregoing and 
accompanying documents and exhibits, listed below, 
are the originals filed in this Court in the above- 
entitled case and that they constitute the record 
on appeal herein as designated by the attorney for 
the appellant: 

Complaint filed in the Superior Court. 

Petition for removal. 

Notice of filing petition for removal. 

First amended complaint. 

Interrogatories propounded by defendant. 

Answers to interrogatories propounded by de- 
fendant. 

First amended answer. 

Stipulation and deposition of E. R. Utley. 



230 Fibreboard Products, Inc., etc. 

Order for judgment. 

Findings of fact and conclusions of law. 

Judgment. 

Notice of appeal. 

Statement of points on which appellant intends 
to rely on appeal. 

Designation of portions of record to be contained 
in record on appeal. 

Reporter's transcript (October 11, 12, 1950). 

Plaintiff's exhibits 1 to 7. 

Defendant's exhibits A to F. 

In Witness Whereof, I have hereunto set my 
hand and affixed the seal of said District Court 
this 23rd day of October, 1951. 

C. W. CALBREATH, 

Clerk; 

By /s/ D. M. TAYLOR, 

Deputy Clerk. 



[Endorsed]: No. 13141. United States Court 
of Appeals for the Ninth Circuit. Fibreboard Prod- 
ucts, Inc., a Corporation, Appellant, vs. W. H. 
Townsend, Appellee. Transcript of Record. Appeal 
from the United States District Court, for the 
Northern District of California, Southern Division. 

Filed October 23, 1951. 

/s/ PAUL P. O'BRIEN, 
Clerk of the United States Court of Appeals for 
the Ninth Circuit. 



vs. W. H. Townsend 231 

In the United States Court of Appeals 
for the Ninth Circuit 

No. 13141 

W. H. TOWNSEND, 

Plaintiff, 

vs. 

FIBREBOARD PRODUCTS, INC., FIRST DOE, 
SECOND DOE, and DOE CORPORATION, 

Defendants. 

STATEMENT OF POINTS ON WHICH AP- 
PELLANT FIBREBOARD PRODUCTS, 
INC., INTENDS TO RELY ON APPEAL 

Appellant Fibreboard intends to rely upon the 
following points : 

1. The District Court erred in entering judg- 
ment for plaintiff against defendant Fibreboard. 

2. The District Court erred in failing to enter 
a judgment dismissing defendant's complaint and 
awarding costs to defendant Fibreboard. 

3. The District Court erred in holding that 
plaintiff and defendant Fibreboard entered a writ- 
ten contract. 

4. The District Court erred in holding that 
plaintiff and defendant Fibreboard entered an oral 
contract. 

5. The District Court erred in holding that 



232 Fibreboard Products, Inc., etc. 

plaintiff and defendant Fibreboard entered an oral 
and written contract. 

6. The District Court erred in failing to hold 
that no legally cognizable contractual relationship 
for permanent employment exists or existed between 
plaintiff and defendant Fibreboard due to vague- 
ness and uncertainty. 

7. The District Court erred in failing to hold 
that no enforceable contractual relationship for 
permanent employment exists or existed between 
plaintiff and defendant Fibreboard, due to the 
Statute of Frauds. 

8. The District Court erred in holding that 
plaintiff and defendant Fibreboard agreed that 
plaintiff should be employed as a recovery operator. 

9. The District Court erred in failing to hold 
that, even if plaintiff and defendant Fibreboard 
had agreed to a contract of employment, the alleged 
contract was for an indefinite period of time. 

10. The District Court erred in failing to hold 
that any contract of employment between plaintiff 
and defendant Fibreboard was lacking in mutuality. 

11. The District Court erred in failing to hold 
that plaintiff was engaged in a temporary job at 
the time of the alleged contract and that plaintiff 
did not leave a permanent job or any other job at 
the request of the defendant Fibreboard or its 
agents, or in order to perform a contract with de- 
fendant Fibreboard. 



vs. W. H. Townsend 233 

12. The District Court erred in failing to hold 
that plaintiff left temporary employment and re- 
moved his family to California and paid his ex- 
penses for such move and disposed of his furniture 
and personal belongings at his own risk and for his 
own purposes and not in reliance upon or in con- 
sideration of any promise, contract, or agreement 
for permanent employment by defendant Fibre- 
board or its agents. 

13. The District Court erred in holding that 
plaintiff has performed all things and matters to 
be performed on his part and that defendant 
Fibreboard has wholly failed to perform things and 
matters on its part to be performed. 

14. The District Court erred in failing to hold 
that defendant Fibreboard offered permanent em- 
ployment to plaintiff and that plaintiff refused the 
same. 

15. The District Court erred in failing to find 
that plaintiff failed to minimize his damages by 
accepting employment offered him by defendant 
on or about September 1, 1949. 

16. The District Court erred in failing to hold 
that defendant Fibreboard has performed all things 
and matters on its part to be performed. 

17. The District Court erred in holding that de- 
fendant Fibreboard breached a contract of employ- 
ment with plaintiff. 

18. The District Court erred in holding that 



234 Fibreboard Products, Inc., etc. 

plaintiff is entitled to judgment in the sum of 
$2,530.24, together with costs of suit. 

19. The District Court erred in failing to hold 
that the complaint should be dismissed and in fail- 
ing to award defendant Fibreboard its costs. 

Dated October 27, 1951. 

/s/ SAMUEL L. HOLMES, 

BROBECK, PHLEGER & 
HARRISON, 

Attorneys for Appellant 
Fibreboard Products, Inc. 

Receipt of copy acknowledged. 
[Endorsed] : Filed October 30, 1951. 



No. 13,141 

IN THE 

United States 
Court of Appeals 

For the Ninth Circuit 



FiBREBOARD PRODUCTS INC., 

a Corporation, et al., 

Appellant, 

vs. 

W. H. TOWNSEND, 

Appellee. 



Opening Brief of Appellant 
Fibreboard Products Inc. 



T. K. Meyer 

Samuel L. Holmes 

Brobeck, Phleger & Harrison, 

111 Sutter Street, 

San Francisco 4, California 

Attorneys for Appellant 
Fibreboard Products Inc. 



FILED 



PARKER PRINTING COMPANY, 180 FIRST STREET, SAN FRANCISCO 



JAN 1 2 1952 
PAUL P. O'BRIEN 



SUBJECT INDEX 



Page 

Jurisdiction 1 

Statement of the Case 2 

I. Nature of Case Raised by the Pleadings 2 

II. Specification of Errors Relied Upon 3 

III. The Essential Facts 5 

Argument 11 

I. Summary of the Argument 11 

II. No Contract Existed Due to Uncertainty as to Terms... 12 

III. Liability of Defendant Was Discharged by Plaintiff's 
Rejection of an Offer of Performance 15 

IV. The Alleged Contract Was Unenforceable for Lack of 
Mutuality 16 

V. The Alleged Contract Was Unenforceable as It Was 

Terminable at the Will of Either Party 19 

VI. The Alleged Contract Is Not Enforceable Under the 

Statute of Frauds 21 

Conclusion 26 



TABLE OF AUTHORITIES CITED 



Cases _> 

Pages 

Adkins v. Model Laundry Co., 92 C.A. 575, 581; 268 P. 939... 19 

Blake v. Mosher, 11 C.A.2d 532, 54 P.2d 492 12 

Brockman v. Lane, 103 C.A.2d 802, 805, 230 P.2d 369 24 

California Employment Stabilization Commission v. Mat- 
covich, 74 C.A.2d 398, 401, 168 P.2d 702 23 

Chas. Brown & Sons v. White Lunch Co., 92 C.A. 457, 461, 
208 P. 490 12,16 

County of Alameda v. Ross, 32 C.A.2d 135, 145, 89 P.2d 460... 16 

Dillingham v. Dahlgren, 52 C.A. 322, 198 P. 832 23 

Ellis v. Klaff, 96 C.A.2d 471, 476-7, 216 P.2d 15 23, 24 

Fabbro v. Dardi & Co., 93 C.A.2d 247, 251, 209 P.2d 91 16, 18 

Flickinger v. Heck, 187 C. Ill, 115, 200 P. 1045 16 

Goehring v. Stockton Morris Plan Co., 93 C.A.2d 417, 209 
P.2d 41 12,13 

Kraft v. Rooke, 103 C.A. 552, 284 P. 935 22 

Laughlin v. Haberfeld, 72 C.A.2d 780, 785, 165 P.2d 544 23 

Levi v. Murrell, 63 F.2d 670 22 

Lord v. Goldberg, 81 C. 596, 22 P. 1126 19 

Mason v. Rose, 176 F.2d 486 12 

Mile v. California Growers Wineries, Inc., 45 C.A. 2d 674, 679, 

114 P.2d 651 _ 19 

Millsap v. National Funding Corp., 57 C.A.2d 772, 135 P.2d 

407 19 

Morris Plan Co., 93 C.A.2d 417, 209 P.2d 41 12, 13 

Nelson v. F. A. Levy Co., 26 C.A. 367, 147 P. 1058 12 



Table of Authorities Cited iii 

Pages 

O'Brien v. O'Brien, 197 C. 577, 586, 241 P. 861 22 

Ruinello v. Murray, 36 C.2d 687, 227 P.2d 251 25 

Salomon v. Cooper, 98 C.A.2d 521, 220 P.2d 774 23 

Sarina v. Pedrotti, 103 C.A. 203, 208, 284 P. 472 12 

Seifert v. Arnold Bros., Inc., 138 C.A. 324, 31 P.2d 1059 19 

Souza v. First California Co., 101 C.A.2d 533, 225 P.2d 955 25 

Speegle v. Board of Fire Underwriters, 29 C.2d 34, 39; 172 

P.2d 867 19 

Standing v. Morosco, 43 C.A. 244, 185 P. 954 24 

Talmadge v. Arrowhead R. Co., 101 C. 367, 371, 35 P. 1000 12 

Thacker v. American Foundry, 78 C.A.2d 76, 84, 177 P.2<1 322 19 
Townsend v. Flotill Products, Inc., 82 C.A.2d 863, 187 P.2d 

466 13,14 

Van Slyke v. Broadway Ins. Co., 115 C. 644, 47 P. 689, 690, 

928 12 

Weston v. Kaplan, 82 C.A.2d 390. 186 P.2d 162 17 

Wineburgh v. Gay, 27 C.A. 603, 605, 150 P. 1003 12 

Statutes 
California Civil Code : 

Sec. 1485, etseq 15,16 

Sec. 1624 21,22 

California Labor Code, Sec. 2922 19 

Title 28, U.S.C.: 

Section 1291 2 

Section 1332 2 



No. 13,141 

IN THE 

United States 
Court of Appeals 

For the Ninth Circuit 



FlBREBOARD PRODUCTS INC., 

a Corporation, et al., 

vs. 

W. H. TOWNSEND, 



Appellant, 



Appellee. 



Opening Brief of Appellant 
Fibreboard Products Inc. 



JURISDICTION 

This is an appeal from a final judgment of the District 
Court for the Northern District of California, Southern 
Division, entered on September 20, 1951 (34-5).* Notice of 
appeal was filed on October 3, 1951 (36). 



^References to pages of the transcript are shown by the page 
numbers in parentheses : ( ) 

Exhibits are referred to by appropriate letter or number follow- 
ing the designation of plaintiff or defendant: (P- ) or (D- ). 

Page of the record for an exhibit is shown by page number 
preceding the letter indicating whose exhibit is referred to, with 
the letter or number of the exhibit following : ( P- ) . 



2 

The District Court exercised jurisdiction in this matter 
pursuant to the provisions of Title 28, U.S.C., Sec. 1332, 
and by virtue of the facts that appellant Fibreboard Prod- 
ucts Inc. (defendant below) is a Delaware corporation 
and appellee (plaintiff below) is a citizen of the State of 
California and the amount in controversy exceeds $3,000.00, 
exclusive of interest and costs (First Amended Complaint, 
7-12). 

This Court has jurisdiction pursuant to the provisions 
of Title 28, U.S.C., Sec. 1291. 

STATEMENT OF THE CASE 
I. Nature of Case Raised by the Pleadings. 

Plaintiff filed this action seeking damages for breach of 
an alleged oral and written employment contract with de- 
fendant Fibreboard entered on October 18, 1948, at Antioch, 
California. Plaintiff alleged that the employment was to 
be as a recovery operator at defendant's San Joaquin Divi- 
sion plant at the rate of $1,725 per hour, for so long as 
plaintiff should desire to be employed and for so long as 
his work should be satisfactory. The employment was also 
alleged to be commenced upon the completion of the plant 
and to be continuous and permanent. Plaintiff further al- 
leged that it was agreed that it would be necessary for him 
to remove from Tuscaloosa, Alabama, to Antioch, Cali- 
fornia, and that, in consideration of plaintiff's acceptance 
of employment and removal to Antioch, defendant would 
pay the reasonable cost of transportation of plaintiff and 
his family. Plaintiff alleged that he did transport himself 
and family to California and that in order to do so he had 
to sell his household furnishings and effects and that upon 



3 

arrival in Antioch he had to rent housing accommodations 
more expensive than those he left in Alabama. Plaintiff 
alleged that the plant was ready for operation in October, 
1949, that he was qualified to perform the work agreed 
upon, and that he offered to go to work on November 2, 
1949, and was refused employment (First Amended Com- 
plaint, 7-12). 

Defendant generally denied that any contract was en- 
tered and affirmatively alleged that employment had been 
offered plaintiff on or about August 31, 1949, which plain- 
tiff refused. Defendant further affirmatively alleged that 
the contracts alleged by plaintiff are invalid and unenforce- 
able in that they are not in writing and subscribed by the 
party to be charged or by his agent (First Amended An- 
swer, 18-20). 

By its answer and by the proof defendant raised ques- 
tions as to the existence of any contract, as to the enforce- 
ability of the alleged contract or contracts, on various 
grounds, and as to a refusal by plaintiff of an offer of per- 
formance by defendant if any contract existed. 

!l. Specification of Errors Relied Upon. 

Appellant's statement of points on which it intends to 
rely on this appeal are set forth at pages 231-4 of the rec- 
ord. They are 19 in number, but may be summarized as 
follows : 

1. The District Court erred in entering judgment for 
plaintiff and in failing to enter judgment for defendant. 

2. The District Court erred in holding that the parties 
entered an} 7 contract, oral or written or oral and written. 

3. The District Court erred in holding that defendant 
agreed to employ plaintiff as a recovery operator. 



4 

4. The District Court erred in failing to hold that the 
parties discussed employment of plaintiff by defendant 
orally and in writing without entering a contract and that 
no contract was entered due to the pendency of defendant's 
investigation of plaintiff's qualifications and due to the 
fact that negotiations were not completed. 

5. The District Court erred in failing to hold that even 
if an agreement had been entered it was unenforceable due 
to its uncertainty, due to the fact that it was terminable at 
will, due to lack of mutuality in that plaintiff reserved a 
right to terminate at any time, and due to the fact that 
there exists no memorandum signed by the party to be 
charged to satisfy the requirements of the statute of frauds. 

6. The District Court erred in failing to hold that 
defendant offered plaintiff employment, which offer dis- 
charged any obligation it may have had, and further that 
plaintiff failed to minimize damages by accepting employ- 
ment offered him by defendant. 

7. The District Court erred in holding that the parties 
agreed that plaintiff would remove himself from Tusca- 
loosa, Alabama, to Antioch, California. 

8. The District Court erred in failing to hold that 
plaintiff left temporary employment in Alabama and re- 
moved himself and his family to Antioch, California, and 
paid his expenses for such moving and disposed of his 
furniture and belongings at his own risk and for his own 
purposes and not in reliance upon or in consideration of 
any promise, contract or agreement for permanent employ- 
ment by defendant or its agents. 

9. The District Court erred in holding that defendant 
breached a contract of employment with plaintiff and that 



5 

plaintiff has performed things and matters on his part to 
be performed and that defendant failed to perform things 
and matters on its part and in failing to hold that defendant 
has performed all things and matters on its part to be 
performed. 

ESS. Ihe Essential Facts. 

In 1948 defendant was constructing a new plant, called 
San Joaquin Division, near Antioch, California, a few miles 
from another plant known as Antioch Division (120) which 
it had operated for many years. Of a contemplated 68 
employees in the department known as the pulp mill it was 
planned to hire all but 25 locally and the rest from out of 
the state (146-7). Among other methods of obtaining a list 
of applicants from which it could select qualified employees 
for the pulp mill and the other departments it placed an 
anonymous advertisement in two issues of a trade journal 
called Southern Pulp & Paper Manufacturer (190). The 
trade journal circulated generally in the Southern states, 
where part of the pulp and paper industry is located and 
where some applicants might be found. Among the many 
responses to the advertisement was a letter from plaintiff 
(39 P-l) dated August 26, 1948, which was accompanied 
by a recommendation (72 P-5) dated February 1, 1944. 

Correspondence ensued between plaintiff and defendant, 
including defendant's reply to the first letter (41 P-2) dated 
September 1, 1948, plaintiff's second letter (90 D-A) dated 
September 7, 1948, the accompanying application of the 
same date (93 D-B), and a letter to plaintiff (45 P-3) dated 
October 19, 1948. 

The documents just enumerated, either singly or col- 
lectively, were found by the District Court to constitute a 



6 
written contract for permanent employment or at least the 
written portion of the "oral and written permanent con- 
tract of employment" (Findings, 31). An examination of 
the documents fails to reveal any mutual understanding 
that plaintiff was hired or was agreed to be hired for any 
particular job or at all. Plaintiff's letter of August 26 made 
application for "one of the jobs" at the new plant (39). 
The letter of recommendation is immaterial as it could not 
have formed part of a contract between these parties. De- 
fendant's letter of September 1 enclosed an application 
blank and specifically cautioned plaintiff that the company 
was not making any commitments. Plaintiff's second letter 
(90 D-A) stated that he would appreciate "any job you 
people have to offer me." The application form submitted 
with the letter asked the kind of work desired and plaintiff 
had replied: "Pulp mill tour foreman" (93 D-B). 

The next document was a letter to plaintiff written after 
plaintiff had telephoned the plant. The subject of the letter 
appeared immediately after plaintiff's name and address, 
as follows : 

"Possibility of Employment in Recovery Department." 
(Emphasis supplied.) 

The body of the letter made no mention of any permanent 
employment. It advised that the plant would begin opera- 
tions about the 1st of March (4% months later) and warned 
of the critical housing situation. It held out one hope to 
plaintiff, i.e., that he could obtain temporary work at an- 
other mill if it were his desire to come to the coast earlier 
than March (45 P-3). 

In none of the documents is there an offer to employ 
plaintiff or an acceptance of his application for permanent 



7 
employment by defendant as a recovery operator. There 
is no evidence in these documents, the only documents in 
the record which could possibly be the written contract, to 
support the finding of the District Court that the parties 
entered a written contract for permanent employment of 
plaintiff as a recovery operator on or about October 18, 
1948, or at any other time. 

The plaintiff was the only witness on his behalf and an 
examination of his testimony, disregarding all conflicting 
testimony, reveals no support for the finding of the District 
Court that an oral contract for permanent employment was 
entered on October 18, 1948, or at any other time. Plaintiff 
testified that he made application for a tour foreman's job 
(142). This apparently referred to the application (93 
D-B) which accompanied (and contradicted) the letter in 
which he stated that he would take any job that was offered. 
Plaintiff further testified that he made a telephone call to 
Mr. Lindley, the pulp mill superintendent at the new plant 
on October 18, 1948. That telephone call furnished the date 
which the District Court apparently considered to be cul- 
mination of contract negotiations. Nowhere in plaintiff's 
testimony concerning that conversation or in Mr. Lindley's 
testimony concerning that conversation is there any evi- 
dence of an agreement to hire plaintiff in a permanent job 
as a recovery operator. On the contrary the record shows 
that the job of recovery operator was not mentioned in that 
conversation by either person. Plaintiff said that Lindley 
told him he would be placed in another plant until he could 
be used if he "wanted a position" (43). (Emphasis sup- 
plied.) Plaintiff also testified Lindley told him he could 
depend on "it" to be a permanent job (43). According to 



8 
plaintiff's later testimony, the first time that any agree- 
ment to hire him as a recovery operator could have been 
made was on November 15, 1948, the day when plaintiff 
presented himself at the plant in Antioch and applied for a 
job (95). By that date he had already moved himself and 
his family to California. He asserted in his testimony that 
at that time Lindley told him he could "pick out any job 
you want in the pulp mill," to which he replied that he would 
"apply for a recovery operator's job" (54, 55). Plaintiff 
later said that on the 15th of November he was "assigned 
as a recovery operator" (71). 

On cross-examination plaintiff was shown the original 
Complaint, which he had verified and in which it was 
alleged that defendant had agreed on October 18, 1948, to 
employ him as a recovery operator for an indefinite time. 
After observing that allegation plaintiff stated : 

"There was nothing said about recovery operator 

until the 15th of November when I arrived at the San 

Joaquin plant" (95). 

Plaintiff was cross-examined about the details of the 
October 18 telephone conversation with Lindley to deter- 
mine whether there had been an agreement to hire him in a 
particular job in that conversation. The testimony was as 
follows (96-7) : 

"Q. (By Mr. Holmes) : When did Mr. Lindley say 
anything to you about the job as recovery operator? 
A. On the 15th of November. 

Q. He didn't say anything about the recovery op- 
erator's job in your telephone conversation'? 

A. No, sir ; he told me Mr. Stitt had given him my 
recommendation from the North Carolina Pulp Com- 
pany and my application for employment and it seemed 
I was an experienced Kraft pulp mill man. 



9 

Q. He didn't promise you any particular job at all? 

A. That's right. 

Q. You didn't know what it would be? 

A. Presumably it would be a tour foreman's job. 
That was the last job I had. 

Q. Which was what you applied for? 

A. Yes, sir. 

Q. That is what you wanted? 

A. That is what I wanted. 

Q. He didn't promise you that or any other job on 
October 18th? [73] 

A. No, sir; he just told me if I would come down 
they would place me in one of the other mills until such 
time, and that I could work in that until it was open, 
and I could stay here and the company would help me 
buy a home if I wasn't able to buy one." 

Plaintiff testified that Lindley told him in the October 
18th telephone conversation that the defendant would re- 
fund his transportation expense (43) and would help him 
buy a house (96). Lindley denied both statements (115, 
116). 

The subject of payment for plaintiff's transportation 
was not raised by him when he arrived in California nor 
for months afterwards (100). Plaintiff testified that Mr. 
Stitt, Manager of the San Joaquin Division, promised him 
the transportation refund the following August (68), but 
this was directly denied by Stitt (181, 201). 

The District Court must have credited the denials as no 
finding was based on plaintiff's claim either for transporta- 
tion or help in buying a house. 

Lindley testified that he made no promise to or agree- 
ment with plaintiff in the telephone conversation other 



10 
than that he would endeavor to find plaintiff temporary 
work at another mill while his qualifications and references 
were investigated to determine whether he would be hired 
at the new plant. Lindley denied that the telephone con- 
versation concerned any particular job (116), which denial 
is in accord with plaintiff's own testimony. 

The asserted promises to help plaintiff buy a house and 
to refund transportation expense were not seriously con- 
tended for. Like the alleged contract for employment they 
lacked any defmiteness and certainty. 

The bulk of the remaining record concerns plaintiff's 
conversations and activities after his arrival in California. 
The most important testimony concerns the offer to plain- 
tiff of a job as a broke (waste) baler operator. 

In the summer of 1949 plaintiff asked Lindley to employ 
him so he could qualify as a delegate to a convention and 
was refused (123). Late in August, when the new plant 
was nearly ready to open, he telephoned Lindley again to 
ask about employment (59). He met Lindley pursuant to 
the telephone call and was told at that time that he was 
not going to be employed in Lindley 's department (62, 
125-7). His application remained on file and he was re- 
ferred to another department head, Mr. Fuller, a few days 
later (216, 222). Fuller offered him the baler operator job 
on or about August 31. Plaintiff informed Fuller that he 
already had a higher paying job and effectively refused the 
offer (65-6, 97, 174, 175, 183, 185, 222-4). He did so despite 
his knowledge that the job he held at the Antioch Division 
was only temporary, pending a determination of whether 
he would be employed at the San Joaquin Division (60). 
The District Court failed to make a finding on this issue. 



11 

ARGUMENT 

I. Summary of the Argument. 

The issues presented here all relate to basic principles 
of contracts. The evidence in the record fails to provide 
the essentials of a valid, enforceable agreement in several 
particulars. 

It is elementary that the proof must show a definite and 
certain mutual understanding between the parties, but none 
was proved in this case. 

A contract must impose mutual obligations to be enforce- 
able, but this alleged contract was terminable at any time 
by the plaintiff without his incurring any liability. 

Similarly, a contract which is for an indefinite time is 
terminable at the will of either party without liability ex- 
cept for performance already rendered. The District Court 
was of the opinion that some consideration other than the 
agreement to work was furnished by this plaintiff, making 
the last mentioned principle inapplicable, but leaving a 
temporary job is not recognized as adequate consideration 
under the California cases and the evidence shows that 
plaintiff moved to California because of his own desire and 
not at the request of defendant. 

Finally, the alleged contract is legally only an oral con- 
tract and is unenforceable because a contract for permanent 
employment, if for a consideration other than the services, 
is incapable of performance within one year and there is 
no writing signed by the party to be charged, or his agent, 
sufficient to satisfy the requirements of the statute of 
frauds. 

There can be no doubt that this contract, alleged to have 
been made in California and certainly performable in Cali- 
fornia, is to be construed under the laws of that state. 



12 

II. No Contract Existed Due to Uncertainty as to Terms. 

The law is established beyond cavil that the terms of a 
contract must be certain and definite. The reason for the 
rule lies, of course, in the necessity for mutual assent to 
the undertaking of each party — the meeting of the minds. 
Where the contract is incomplete, uncertain and lacking 
in essential terms, no action will lie for its breach. This 
doctrine was stated by the California Supreme Court in 
Talmadge v. Arrowhead R. Co., 101 C. 367, 371, 35 P. 1000, 
and Van Slyke v. Broadway Ins. Co., 115 C. 644, 47 P. 689, 
690, 928. It has been repeated by other appellate courts 
in Nelson v. F. A. Levy Co., 26 C.A. 367, 147 P. 1058; Wine- 
burgh v. Gay, 27 C.A. 603, 605, 150 P. 1003 ; Chas. Brown & 
Sons v. White Lunch Co., 92 C.A. 457, 461, 208 P. 490; 
Sarina v. Pedrotti, 103 C.A. 203, 208, 284 P. 472, and Blake 
v. Mosher, 11 C.A.2d 532, 54 P.2d 492. 

In addition to these authorities, there is the well-known 
case of Mason v. Rose, 176 F.2d 486, frequently cited for 
its discussion on conflicts of laws, in which the United States 
Court of Appeals for the 2nd Circuit applied California 
law to a contract of joint venture, entered in England to 
be performed in California. In that case a long and detailed 
letter under which Mason was to perform services was held 
to be too indefinite in essential terms to be a valid contract. 

The doctrine was recently discussed in Goehring v. Stock- 
ton Morris Plan Co., 93 C.A.2d 417, 209 P.2d 41. At page 
420 the Court said : 

"This court, in Sarina v. Pedrotti, 103 Cal. App. 203, 
208 [284 P. 472], quoting from Talmadge v. Arrow- 
head E. Co., 101 Cal. 367, 371, held [35 P. 1000] : 'It is 
well settled that no action will lie to enforce the per- 



13 

formance of a contract, or to recover damages for its 
breach, unless it be complete and certain; * * *' 

"This court, in Blake v. Mosher, 11 Cal. App. 2d 532, 
535 [54 P. 2d 492], quoted from 13 Corpus Juris, page 
263, as follows : 'In order that there may be an agree- 
ment, the parties must have a distinct intention com- 
mon to both, and without doubt or difference. Until 
all understand alike, there can be no assent, and there- 
fore no contract. Both parties must assent to the same 
thing in the same sense, and their minds must meet 
as to all the terms. If any portion of the proposed 
terms is not settled or no mode is agreed on by which 
it may be settled, there is no agreement, * * *' It also 
quoted 6 California Jurisprudence, page 43, where it 
is said : 'There can be no contract unless the minds of 
the parties have met and mutually agreed. Consent is 
not mutual unless all parties agree upon the same thing 
in the same sense/ and page 216, where it states : 'A 
contract sought to be enforced must, at all events, be 
so certain that its meaning can be ascertained; an in- 
definite contract cannot be enforced because the courts 
cannot know to what the parties agreed.' 

"In Reymond v. Laboudigue, 148 Cal. 691, 694 [84 
P. 189], the court quoted with approval the following 
from 26 American and English Encyclopedia of Law 
(2d ed.), page 33: 'The contract sought to be enforced 
must, at all events, be so certain that its meaning can 
be ascertained, as an indefinite contract cannot be en- 
forced, because the courts do not know what the par- 
ties agreed. The meaning and intent of the parties 
should be placed beyond the bounds of mere conjecture 
by full and clear proof.' Also, see Wineburgh v. Gay, 
27 Cal. App. 603, 605 [150 P. 1003]." 

The case of Townsend v. Flotill Products, Inc., 82 C.A.2d 
863, 187 P.2d 466, throws additional light on the question 



14 

of the existence of a contract in this case. It was there held 
that negotiations constituting an agreement to enter into 
a contract at a future date are not binding. On the evi- 
dentiary quality of plaintiff's testimony here the opinion 
is particularly pertinent (p. 866) : 

"Before the court can say that an express contract 
is proven, there must be something more than the de- 
ductions or conclusions of the witness from the words 
used." 

The application of the doctrine of these cases is readily 
apparent. Plaintiff alleged in his complaint that a contract 
was entered to employ him as a recovery operator. That is 
a specific job in the recovery department of the pulp mill. 
The District Court made a finding in accordance with the 
pleading, to the effect that the oral and written discussions 
culminated in a binding contract on October 18, 1948. The 
evidence, however, shows without any conflict that the posi- 
tion of recovery operator was never mentioned by the par- 
ties in their correspondence or discussions. The evidence 
shows without contradiction that the position of recovery 
operator was not the subject of any discussion until Novem- 
ber 15 when, according to the plaintiff, he selected the job. 
He asserted he was offered his choice at that time because 
all of the salaried positions were filled. We are at a loss 
to understand how the District Court reached its conclusion 
in the absence of any evidence that the job as recovery 
operator was discussed on or prior to the date when the 
alleged contract was entered. 

That the designation of the particular job is an essential 
element of the contract of employment is a point that hardly 
needs laboring. There are several types of jobs in the re- 



15 

covery department and dozens more in the plant as a whole. 
If the employment contract were not for a job as recovery 
operator, then it must be for none at all or for any available 
job. Plaintiff chose to base his case on the contention that 
a specific job was agreed to, but he failed to prove it, If 
he had contended that the agreement was for any job, type 
and nature unspecified, his argument would have been just 
as untenable, for his refusal of the job of broke baler oper- 
ator furnishes a complete defense, as is more particularly 
developed hereafter. 

As the proof stands, plaintiff claims the contract was 
entered on October 18 for employment as recovery oper- 
ator, on the strength of which, he claims, he moved from 
Alabama to California. The claim is rebuffed by his own 
admissions and other proof that there was no definite agree- 
ment in any respect on or before that date. The most that 
can be said is that there were discussions or negotiations 
looking toward possible employment. The climax of those 
discussions was never reached and an indispensable ele- 
ment of an employment contract, i.e., the mutual assent 
to the particular job, was never provided. An employment 
contract unrelated to a particular job is meaningless. That 
major uncertainty should dispose of the case as such a con- 
tract is too vague and indefinite for the law to recognize 
it and give damages for a breach. 

EBB. Liability of Defendant Was Discharged by Plaintiff's Rejection 
of an Offer of Performance. 

No liability can attach where a promisee refuses a prom- 
isor's offer to perform. Whatever liability may have existed 
prior to that time is discharged. California Civil Code, Sec. 



16 
1485, et seq., Flichinger v. Heck, 187 C. Ill, 115, 200 P. 
1045. Plaintiff herein was offered a job in the new plant, 
but, with knowledge of the fact that he was retained at the 
Antioch Division only on a temporary basis until it was 
determined whether he could be used at the new plant, he 
told the department head who offered him the job that he 
was already employed at a higher wage. Whether plaintiff 
took this peculiar action in an attempt to dicker for a higher 
wage rate or in an attempt to obtain the offered job for his 
brother-in-law is uncertain. The important thing about the 
transaction is that the job was offered to plaintiff and his 
response amounted to an outright rejection of the offer. 
(See 106-7 in addition to references above (p. 10) on this 
matter.) 

Since the proof shows that the contract upon which plain- 
tiff sues was not for the job which he alleged it to be, the 
most that it could have been was for any job which was 
available. Such a job was offered to him; he had done it 
on a temporary basis a few weeks earlier and admitted he 
was competent to perform it (111-112). His rejection of 
the offer discharged any obligation owing to him. 

IV. The Alleged Contract Was Unenforceable for Lack of 
Mutuality. 

A contract containing an unconditional right of one party 
to terminate and cancel it at any time is lacking in mutual- 
ity and is not binding upon the other party. The principle 
has been applied by California courts in Chas. Brown & 
Sons v. White Lunch Co., 92 C.A. 457, 461, 268 P. 490; 
County of Alameda v. Ross, 32 C.A.2d 135, 145, 89 P.2d 
460, and Fabbro v. Dardi d Co., 93 C.A.2d 247, 251, 209 
P.2d 91. 



17 

In a recent case the defendant was obligated under a pur- 
ported contract to pay the plaintiff $100 per week for six 
months and in return received the exclusive services of the 
plaintiff for acting, modeling and other commercial appear- 
ances, but the plaintiff was not obligated to accept any en- 
gagements. The contract was held to be unenforceable due 
to lack of mutuality. Weston v. Kaplan, 82 C.A.2d 390, 186 
P.2d 162. Plaintiff herein brought his case within the rule 
of the Weston case by his testimony that he was entitled 
under the contract to quit at any time. 

By reserving the right to end the agreement at any time 
plaintiff made the contract effective only at his will. He 
was not required to work permanently or for a reasonable 
time or even until he gave notice (97-99). Nothing in the 
alleged agreement upon which he sues required him either 
to report for work in the first instance or to work a single 
day thereafter. The choice was entirely and unconditionally 
his. According to the plaintiff a permanent job was offered 
him, but in return he gave the defendant only the illusory 
promise that he would work as long as he desired. Such 
an agreement is not binding on either party. 

The question of consideration and the question of mutual- 
ity are sometimes confused, but the Weston case illustrates 
the distinction. The plaintiff in that case gave considera- 
tion for the agreement, for she suffered a detriment in giv- 
ing the defendant an exclusive agency for her commercial 
appearances. Despite that consideration no valid contract 
was entered because the plaintiff could still refuse to do 
any work. 

The matter of mutuality of obligation is also clearly dis- 
tinguishable from mutuality of remedy. The latter is a 



18 
peculiarly equitable doctrine applicable in cases where spe- 
cific performance is sought. Mutuality of obligation on the 
other hand is a fundamental doctrine of contract law in 
determining whether a valid contract exists. 

The Weston case illustrates that mutuality is just as im- 
portant to contracts of employment as it is to contracts 
for the sale of goods such as were involved in the Brown 
and Fabbro cases. 

Only one additional point need be made here, that is, 
that part performance has no effect upon the doctrine of 
mutuality of obligation. This is established by the Fabbro 
and Brown cases. As stated in the Fabbro case, page 251: 
"Mutuality is absent when one party to a contract 
reserves an absolute right to cancel or terminate it at 
any time. * * * The law is well settled that, where a 
contract for the future delivery of personal property 
confers upon either party an arbitrary right of can- 
cellation prior to delivery, it is lacking in mutuality 
and will be binding upon the parties only to the extent 
it has been performed.'' 

Despite the fact that one party may have done some act 
bargained for, where he assumes no burden to render ser- 
vices for any other time that he chooses, mutuality is lack- 
ing and the contract is not binding on the defendant. If 
services have been performed, liability extends only to that 
extent and there is no liability for a breach of contract. 

In this case plaintiff was promised at most a temporary 
job. He was employed in such a job and was fully paid for 
it. No obligation existed beyond that. 



19 

V. The AE'eged Contract Was Unenforceable as It Was Termina- 
ble at the Will of Either Party. 

An employment having no specified term may be termi- 
nated at any time by either the employer or the employee 
on notice to the other. California Labor Code, Sec. 2922; 
Thacker v. American Foundry, 78 C.A.2d 76, 84, 177 P.2d 
322; Mile v. California Growers Wineries, Inc., 45 C.A.2d 
674, 679, 114 P.2d 651 ; Adkins v. Model Laundry Co., 92 
C.A. 575, 581; 268 P. 939; Lord v. Goldberg, 81 C. 596, 22 
P. 1126. 

The District Court found that plaintiff had a contract 
for "permanent" employment, but that description does not 
affect the application of the general rule, for "permanent" 
means an indefinite term. Speegle v. Board of Fire Under- 
writers, 29 C.2d 34, 39 ; 172 P.2d 867. A contract for per- 
manent employment is only a contract for an indefinite 
period, terminable at the will of either party, unless it is 
based on some consideration other than the services to be 
rendered. 

The District Court apparently believed that plaintiff's 
case fell within the exception from the above rule on the 
ground that he furnished some consideration for this al- 
leged contract. In the Order for Judgment the cases of 
Millsap v. National Funding Corp., 57 C.A.2d 772, 135 P.2d 
407, and Seifert v. Arnold Bros., Inc., 138 C.A. 324, 31 P.2d 
1059, are referred to. The Court mentions that plaintiff 
quit a job in Alabama and moved to California. Presumably 
that was believed to be consideration. 

The Millsap and Seifert cases, however, do not govern 
this action. In the first place plaintiff quit a temporary job 
which was about to end (Deposition of Utley, Question 18, 



20 
p. 24, and Answer 18, p. 26, Questions 21 and 22, p. 24, and 
Answers 21 and 22, p. 27). In the Thacker case, which dis- 
cussed the Millsap case at some length, it was pointed out 
that no such prejudice has been suffered where a temporary 
job is left sufficient to afford consideration to support a 
contract for the continuance of employment for any par- 
ticular period of time. Secondly, the principal of the Seifert 
and Millsap cases is limited, as stated in the Thacker case 
at pages 83 to 85, to those factual situations where there is 
an express declaration or understanding between the par- 
ties that plaintiff would not give up present employment 
or other things of value unless defendant agreed to employ 
him permanently. No express declaration that plaintiff 
would take a job only on certain terms was proved in this 
case. 

The element of consideration mentioned in the Findings 
was the movement of plaintiff from Alabama to California. 
An examination of the evidence shows that defendant did 
not ask for or induce the plaintiff's removal to California. 
At the time plaintiff and Mr. Lindley discussed the pos- 
sibility of employment at Antioch the plant was not ex- 
pected to begin operations for about 4% months. This was 
repeated to the plaintiff in the letter of October 19, which 
made plaintiff's migration a matter of his personal "desire." 
The letter referred to the subject of his discussions with 
Lindley as "possibility of employment." In view of the 
fact that the final communication between the parties prior 
to the plaintiff's exodus to California placed him on notice 
that, as far as the prospective employer was concerned, the 
employment existed only in the realm of possibility, the 
finding that plaintiff's unexpected and sudden removal to 



21 

California was induced by or contemplated by the defend- 
ant as the quid pro quo of an agreement to employ him 
permanently is plainly contrary to the evidence. Defendant 
held out the hope for temporary work only and that was 
furnished for a period of more than 8 months. 

If this alleged contract was, as we urge, terminable at the 
will of either party, on the grounds stated above, it is im- 
material whether it was written or oral, for no liability can 
attach. If, however, this Court finds that the agreement 
was not terminable at the will of either party, then the sec- 
tion of this brief immediately following is of supervening 
importance. Its place near the end is not to be mistaken 
as an indication of a lack of importance. 

VI. The AESeged Contract h Not Enforceable Under the Statute 
of Frauds. 

A contract for permanent employment has been found 
by the District Court to be a contract for a reasonable 
period and a reasonable period is stated to be two years. 
The finding was based on the Millsap decision that "per- 
manent" means two years when there is good consideration 
for a contract of employment. As discussed above, the 
Millsap case is an exception to the rule that contracts for 
an indefinite period are terminable at will. The exception 
is not applicable here, but we do not argue with the theory 
established in that case that permanent employment means 
two years where the contract is not terminable at will. Since 
permanent employment means two years, a contract pur- 
porting to be for permanent employment falls within the 
first provision of the California statute of frauds : 

"The following contracts are invalid, unless the 
same, or some note or memorandum thereof, is in writ- 



22 

ing and subscribed by the party to be charged or by his 
agent : 

"1. An agreement that by its terms is not to be per- 
formed within a year from the making thereof; * * V 
(California Civil Code, Sec. 1624.) 

The Federal Courts, where the statute of frauds is in- 
volved, look to the law of the state of the forum and if 
thereby a statute is held to be procedural and remedial, it 
is controlling. Levi v. Murrell, 63 F.2d 670. The statute of 
frauds is a procedural statute in California. O'Brien v. 
O'Brien, 197 C. 577, 586, 241 P. 861. Therefore, it controls 
this case. 

In order to satisfy the requirements of the statute, plain- 
tiff's alleged contract must have been performable within 
one year from October 19, 1948, or must be the subject of 
a sufficient memorandum signed by the party to be charged. 

In considering the time element it must be remembered 
that even under plaintiff's proof the employment would not 
start until some 4% months after the agreement was en- 
tered, for the plant operations were not contemplated to 
begin until March. Under California law the measurement 
of one year begins the day after the execution of the 
agreement. An employment commencing seven days sub- 
sequent to the making of an oral contract and extending 
one year thereafter has been held within subdivision 1 of 
the statute. Kraft v. Rooke, 103 C.A. 552, 284 P. 935. There- 
fore plaintiff's contract for employment for two years had 
to be performable within the 7y 2 months remaining after 
the contemplated opening of the plant in the first part of 
March in order to exempt it from the operation of the 
statute. 



23 

We may next inquire whether there is a written memo- 
randum sufficient to satisfy the requirements of the statute. 
The writing must contain the terms and conditions of the 
promises constituting the contract and recovery may not be 
predicated on parol proof of material terms omitted from 
the written memorandum, even though the oral understand- 
ing is entirely consistent with and in no way tends to vary 
or contradict the written instruments. Ellis v. Klaff, 96 
C.A.2d 471, 476-7, 216 P.2d 15. 

Although the District Court found this alleged contract 
to be "oral and written," whatever oral elements were re- 
ferred to must be ignored in determining whether or not 
there is a memorandum adequate to satisfy the statute. A 
writing which purports to be a memorial of an agreement 
within the statute must contain its essential terms and its 
material elements without recourse to parol evidence of 
the intention of the parties. Salomon v. Cooper, 98 C.A. 
2d 521, 220 P.2d 774, which follows the older case of Dilling- 
ham v. Dahlgren, 52 C.A. 322, 198 P. 832. 

Plaintiff's testimony of his telephone conversations with 
Mr. Lindley cannot be mixed with the written documents to 
prove a written contract. Where written documents signed 
by the parties do not purport to evidence the whole agree- 
ment and other terms are arrived at orally, the contract is 
in legal effect an oral contract. California Employment 
Stabilization Commission v. Matcovich, 74 C.A.2d 398, 401, 
168 P. 2d 702. A contract partly in writing and partly oral 
is in legal effect an oral contract ; it occurs where an incom- 
plete writing or one expressing only a part of what is meant 
is by words rounded into a full contract. LaugMin v. Haber- 
feld, 72 C. A.2d 780, 785, 165 P.2d 544. In considering whether 



24 

a contract exists, parol evidence may be used. However, 
where the statute of frauds is involved, parol evidence may 
not be considered, even if admitted without objection, to 
furnish the terms of a written agreement. Ellis v. Klaff, 96 
C.A.2d 471, 476-8, 216 P.2d 15. 

Considering the only writings out of which a written 
agreement may be developed, plaintiff's exhibits 1, 2 and 3 
and defendant's exhibits A and B, it is impossible to deter- 
mine the job which it is claimed was the subject of the 
contract. The final writing, Lindley's letter of October 19, 
can be interpreted only to mean that the terms of employ- 
ment had not been reached. Certainly a letter which has as 
its subject "possibility of employment" and fails to mention 
any particular job is not sufficiently definite and certain to 
satisfy the requirements of the statute of frauds. 

It may be that the District Court considered that the 
plaintiff's move from Alabama to California somehow ex- 
empted this alleged contract from the operation of the 
statute. The cases do not support that conclusion. In a 
similar situation it has been held that an oral agreement 
for an actor's engagement, made with a producer while the 
actor was still performing in another state, for services for 
one year in California if he would remove there is within 
the statute of frauds. Standing v. Morosco, 43 C.A. 244, 
185 P. 954. The fact that the plaintiff in that case migrated 
from one state to another was ineffectual to prevent the 
operation of the statute. 

It has been recently held that an oral agreement of 
employment for five years is invalid under the statute of 
frauds and part performance does not cure the invalidity. 
Brockman v. Lane, 103 C.A.2d 802, 805, 230 P.2d 369. In 



25 

another very recent case, decided by the California Su- 
preme Court, it was held that, despite the fact that an 
employee had given up a permanent position and had 
entered upon and worked for a substantial period pur- 
suant to an oral agreement for employment for a term of 
five years, the employer was not estopped to raise the 
statute of frauds as a defense and the contract was invalid 
and unenforceable. Ruinello v. Murray, 36 C.2d 687, 227 P. 
2d 251. 

Since the writings in this case do not show the job which 
was the subject of the contract and plainly prove that the 
parties were still negotiating without having reached a 
mutual understanding, they are insufficient to make out the 
essentials of a contract. Mixing writings and oral discus- 
sions produces at most merely an oral contract, voidable 
at the election of either party. Souza v. First California 
Co., 101 C.A.2d 533, 225 P.2d 955. If the mixture were any 
contract it was oral in legal cognizance and within the 
statute of frauds. Each party accepted the risk that the 
other may withdraw and no liability attaches when one does 
withdraw, whether it be before or after performance is 
entered upon. Considering the written material alone, it is 
clear that no agreement to hire plaintiff as a recovery 
operator was ever reached. 



26 

CONCLUSION 

It is submitted that the judgment should be reversed. 
Since all the pertinent facts are before the Court, it is 
further submitted that the District Court should be directed 
to enter judgment for defendant for its costs of suit. 

Dated : San Francisco, California, January 11, 1952. 

Kespectfully submitted, 

T. R. Meyer 

Samuel L. Holmes 

Brobeck, Phleger & Harrison, 

111 Sutter Street, 

San Francisco 4, California 

Attorneys for Appellant 
Fibreboard Products Inc. 



No. 13,141 

IN THE 

United States Court of Appeals 
For the Ninth Circuit 



FlBREBOARD PRODUCTS, 


Inc. (a cor- 


poration), 
vs. 


Appellant, 

> 


W. H. TOWNSEND, 






Appellee. 



BRIEF FOR APPELLEE. 



C. K. CURTRIGHT, 

Charles R. Garry, 

68 Post Street, San Francisco 4, California, 

Attorneys for Appellee. 

FILED 

FEB 2 y 1952 
PAUL P. O'BRIEN 

CLERK 



Pebnatj-Walsh Printing Co., San Fbancisco 



Subject Index 

Page 

The opinion below 1 

Jurisdiction 2 

Statement of the case 2 

T. Nature of case raised by the pleadings 2 

II. Questions presented 2 

III. The facts 3 

Argument 10 

I. As to whether no contract existed, due to uncertainty 

as to terms 10 

II. As to whether the liability of defendant was discharged 

by plaintiff's rejection of an offer of performance. ... 14 

III. As to whether the alleged contract was unenforceable 

for lack of mutuality 16 

IV. The alleged contract was enforceable and was not 

terminable at the will of either party 18 

V. The statute of frauds is not applicable 23 

Conclusion 25 



Table of Authorities Cited 



Cases Pages 

Arrow Flying Service v. Universal Flyers Ground School, 
221 Pac. (2d) 231 ; 99 A.C.A. 66 (1950) 13, 17 

Brawley v. Crosby Research Foundation, Inc., 73 Cal. App. 

(2d) 392 17 

Columbia Pictures Corp. v. DeToth, 87 Cal. App. (2d) 620 23 

Ezmirlian v. Otto, 139 Cal. App. 486 13 

Los Angeles Traction Co. v. Wilshire (1902), 135 Cal. 654 16 

Mason v. Rose, 176/ Fed. (2d) 486 ; 85 Fed. Supp. 300 11 

Millsap v. Natl. Funding Corp. of Calif., 57 Cal. App. (2d) 

772 19 

Monarco v. LoGreco, 220 Pac. (2d) 737; 35 A.C. 660 (1950) 24 

Newby v. Anderson, 217 Pac. (2d) 69; 97 A.C.A. 83 (1950) 13 

Nuland v. Pruyn, 216 Pac. (2d) 526; 96 A.C.A. 936 (1950) 13 

Payne v. Neuval, 155 Cal. 46 13 

Pipe v. Hayden, 218 Pac. (2d) 578; 97 A.C.A. 669 (1950) . .13, 16 

Seifert v. Arnold Bros., Inc., 138 Cal. App. 324 18 

Seymour v. Oelrichs, 156 Cal. 782 24 

Stockton Dry Goods Co. v. Girsh, 221 Pac. (2d) 186; 99 

A.C.A. 14 (1950) 13 

Thacker v. American Foundry, 78 Cal. App. (2d) 76 20 

Weil v. California Bank, 219 Cal. 538 13 

Statutes 

Civil Code, Section 1654 13 

28 U.S.C., Section 1291 2 

28 U.S.C., Section 1332 2 

Texts 

49 Am. Jur., 387, Section 25, and page 391, Sections 29 

and 30 23 

40 Am. Jur. 409, Sections 51 and 58 23 

49 Am. Jur. 427, 436 and 471 V . . , . ,/. 24 



No. 13,141 

IN THE 

United States Court of Appeals 

For the Ninth Circuit 



Fibreboard Products, Inc. (a cor- 
poration), 

Appellant, 
vs. 

W. H. Townsend, 

Appellee. 



BRIEF FOR APPELLEE. 



THE OPINION BELOW. 

The District Court, sitting without a jury, wrote 
an opinion ordering judgment for the appellee, plain- 
tiff below, in the sum of $2,53Q.25, with interest 
thereon at the rate of seven per cent per annum from 
the date thereof (29, 30). J The Court entered find- 
ings of fact and conclusions of law T in support of its 
order for judgment and thereby entered judgment 
(31-36). 



References to pages of the Transcript are shown by the page 
numbers in parentheses: ( ). 

Exhibits are referred to by appropriate letter or number fol- 
lowing the designation of plaintiff or defendant: (P ) or (D ). 

Page of the record for an exhibit is shown by page number pre- 
ceding the letter indicating whose exhibit is referred to, with t.hr 
letter or number of the exhibit following: ( P.: ). 



JURISDICTION. 

Final judgment was entered in this case on Sep- 
tember 20, 1951 (34, 35). The jurisdiction of the 
District Court was invoked pursuant to the provisions 
of Title 28, U.S.C. Sec 1332, and by virtue of the 
facts that appellant Pibreboard Products, Inc. (de- 
fendant below) is a Delaware corporation and appel- 
lee (plaintiff below) is a citizen of the State of Cali- 
fornia and the amount in controversy exceeds $3,000, 
exclusive of interest and costs (First Amended Com- 
plaint, 7-12). 

This Court has jurisdiction pursuant to the pro- 
visions of Title 28, U.S.C, Sec. 1291. 



STATEMENT OP THE CASE. 
I. NATURE OF CASE RAISED BY THE PLEADINGS. 

Appellant in its opening brief has substantially 
stated the issues involved in the pleadings of the 
parties (Appellant's Opening Brief 2, 3). 



II. QUESTIONS PRESENTED. 

Appellant's statement of points on which it intends 
to rely is set forth at pages 231-234 of the record. 
They are nineteen in number, but appellant has sum- 
marized them to a total of nine (Appellant's Opening 
Brief 3, 4, 5) and has further reduced them to the 
following questions: 

A. No contract existed due to uncertainty as 
to terms. 



B. Liability of defendant was discharged by- 
plaintiff's rejection of an offer of performance. 

C. The alleged contract was unenforceable for 
lack of mutuality. 

D. The alleged contract was unenforceable as 
it was terminable at the will of either party. 

E. The alleged contract was not enforceable 
under the statute of frauds. 



III. THE FACTS. 

The Court sitting without a jury, after hearing 
all the evidence submitted, found as follows: 

A. That on or about the 18th day of October, 1948, 
the plaintiff and the defendant Fibreboard Products, 
Inc., entered into an oral and written permanent 
contract of employment whereby the parties mutually 
agreed that plaintiff should be employed by defend- 
ant corporation in the capacity of a recovery operator 
in the Recovery Department of the San Joaquin 
Division of said defendant corporation's newly con- 
structed paper pulp mill plant at Antioch, California, 
said employment to commence when defendant's 
paper mill plant began operations, and to continue 
for so long as plaintiff's work was satisfactory, and 
that plaintiff's permanent position would be at the 
prevailing hourly rate of $1,725 per hour, forty hours 
per week, fifty-two weeks per year. It was further 
agreed that plaintiff would remove from the City 
of Tuscaloosa, Alabama, to Antioch, California, and 
pending the opening of defendant's paper pulp mill. 



said defendant would endeavor to find other employ- 
ment for plaintiff. 

B. That at the time of the agreement between the 
parties, defendant corporation was advertising- for 
and in need of experienced paper pulp men, and was 
creating a labor pool of experienced pulp mill men in 
contemplation of the opening of the pulp mill plant 
in Antioch, California. 

C. That plaintiff had had many years of experi- 
ence in many phases of the paper pulp mill industry 
and was a seasoned and experienced recovery op- 
erator. 

D. That plaintiff was gainfully employed in Tus- 
caloosa, Alabama, at the time of the agreement and 
that he did leave said employment and did remove 
with his family to Antioch, California, and that he 
did pay his own expenses for said move, and plain- 
tiff did dispose of his furniture and personal belong- 
ings in order to remove to defendant's place of em- 
ployment. 

E. That on or about November 2, 1949, defendant 
corporation's paper pulp mill was ready for opera- 
tion, at which time, plaintiff did present himself 
ready, willing, and able to perform his part of the 
contract of employment. 

F. That when the employment for which plaintiff 
was contracted became available, defendant corpora- 
tion refused, and does now refuse, to fulfill the terms 
of the said contract, and refused, and does now refuse, 
to employ the plaintiff. 



Gr. That plaintiff has performed all of the things 
and matters on his part to be performed under the 
terms of the said contract and that defendant cor- 
poration has wholly failed to perform the things and 
matters on its part to be performed under the said 
contract of employment. 

H. That a contract for permanent employment in 
the State of California is a contract to retain in em- 
ployment for a reasonable period of time, and that a 
reasonable period of time is two years. 

I. That had plaintiff entered into the employ of 
defendant corporation as contracted at the time plain- 
tiff presented himself ready, willing, and able, to the 
said defendant corporation, he would have earned the 
sum of $7,176.00 during a two year period. If plain- 
tiff continues in his present occupation, he will have 
earned $4,645.75, or sustained a loss of earnings for 
the two-year period in the sum of $2,530.25. 

The facts, generally stated, are that plaintiff, who 
for a period of twenty years had worked in pulp 
mills, having been a tour foreman or general foreman 
for the North Carolina Pulp Company (72 P-5, 53) 
was working for the Otis Elevator Company in Tus- 
caloosa, Alabama, earning $1.58 per hour as a me- 
chanic's helper when in August, 1948, he saw an ad- 
vertisement in a trade journal offering employment 
to experienced pulp mill men (38, 190). He imme- 
diately answered it on August 26, 1948 (39 P-l) and 
enclosed a letter of reference received from the North 
Carolina Pulp Company (72 P-5). 



6 



On September 1, 1948, C. M. Stitt, plant manager 
of the defendant corporation's San Joaquin Division, 
answered plaintiff's letter of inquiry and application 
for employment, stating "based on your experience, 
we feel that you can be reasonably assured that we 
will have some position available for you", and that 
the matter would be referred to M. T. Lindley, who 
was expected to begin work as pulp mill superin- 
tendent for defendant corporation on or about Octo- 
ber 1, 1948, and would be charged with the responsi- 
bility for hiring crews. An application blank and 
the letter of reference were returned to plaintiff (41, 
42 P-2). Plaintiff filled out the application blank and 
on September 7, 1948, mailed it to defendant (90 D-A, 
93D-B). 

In the afternoon of on or about the 18th day of 
October, 1948, plaintiff telephoned M. T. Lindley. 
According to the testimony of the plaintiff, Lindley 
told him that he had a permanent position for him 
when the pulp plant opened, that they were pleased 
with the prospect of hiring plaintiff, that if he wished 
to come sooner, he would be placed in a temporary 
position in one of the defendant's mills, and further, 
that the defendant would reimburse plaintiff any 
traveling expenses incurred by him and his family. 
Plaintiff told Lindley that he was employed by the 
Otis Elevator Company at $1.58 per hour, that he 
would give them notice but that he would be in 
Antioch, California, on the 15th day of November, 
1948, with his family, ready to go to work (43, 98-99, 
138-139). 



Following his conversation with the plaintiff, Lind- 
ley on October 18, 1948, dictated a letter, which was 
dated October 19, 1948, wherein the plaintiff's tele- 
phone call was acknowledged and wherein Mr. Lind- 
ley said "* * *, if it is your desire to come to the 
Coast at an earlier date [before actual operations be- 
gin at the new mill], we will place you in one of our 
mills at whatever they may have for you until we 
begin operating". As for housing, Lindley said that 
rentals were critical but that there were " homes avail- 
able for purchase ranging in price from $6,500 to 
$9,000 (45-46 P-3). 

According to the plaintiff, upon receipt of Lindley 's 
letter, he gave notice to the Otis Elevator Company 
(46) and sold five rooms of furniture of the approxi- 
mate value of $2,500 for a sum of from $800 to 
$900 (49-51). On or about November 6, 1948, the 
plaintiff testified that he answered an ad in a news- 
paper placed by a party seeking someone who would 
drive an automobile to Fort Mason, California, in 
which he came to the Coast with his wife and three 
daughters, expending $209.35 for gas, oil, repairs, etc. 
on the trip (47-48). 

Plaintiff arrived in Antioch on the 15th of Novem- 
ber, 1948 and reported to Mr. Lindley. He was told 
that he would be given a position of recovery operator 
in the pulp mill when it commenced operations. About 
a week later he was given temporary work at the 
defendant's Antioch division, doing various jobs at 
$1.54 per hour, and for overtime and a half and double 
time (54-57). 



8 



Plaintiff testified that he waited thus for the pulp 
mill's opening and his inquiries to the management 
as to when he would be put to work as a recovery 
operator were constantly met with the promise that 
it was only a matter of time, until the plant began 
operations (59, 68-69). 

From statements made by Stitt and Lindley, plain- 
tiff learned that the pulp mill had begun operations 
and was about seventy per cent filled as to employ- 
ment capacity, and plaintiff insisted that Lindley let 
him know when he; would be put to work in the re- 
covery room. On the 28th day of August, 1949, when 
this interview^ took place, Lindley told plaintiff that 
he was through. When pressed for reasons why, 
Lindley informed plaintiff that this decision was 
reached because the management had heard rumors 
(59-64). 

Three days thereafter and on the 31st day of 
August, 1949, plaintiff was told to report at the San 
Joaquin Division at 1 :00 p.m. Puller, to whom plain- 
tiff reported, explained that he had learned plaintiff 
was out of work and could give him a job in the 
paper mill as broke baler at $1,425 per hour. Plain- 
tiff told Puller that he was employed at the Antioch 
Division earning $1.54 per hour and further, that 
the work promised him at the San Joaquin Division 
was in the pulp mill and not in the paper mill. Fuller 
replied that he had not been fully apprised of those 
facts. Plaintiff thereupon returned to the Antioch 
Division (64-67). By a letter dated September 2, 
1949 (57 P-4) plaintiff's employment with defendant 
corporation was terminated. 



9 



On September 3, 1949, a union representative and 
the plaintiff met with Mr. Stitt. It was Stitt's posi- 
tion, according to plaintiff, that Lindley had no 
authority to fire him but that the plaintiff had re- 
fused to accept employment offered by the defendant 
corporation's San Joaquin Division. Stitt refused 
plaintiff 's request that Lindley and Fuller be brought 
in in order to clarify the situation but promised to 
look into it (69-70). 

On November 2, 1949, plaintiff wrote to Stitt, stat- 
ing that in September and October of 1948 he had 
been offered employment in the new pulp mill and 
requested that the promised employment be given him, 
or the reason for such denial (77-78 P-6). C. M. 
Stitt's reply to plaintiff's letter was that according 
to defendant's records, plaintiff had seen fit to turn 
down the position offered him at the San Joaquin 
Division on Wednesday, August 31, 1949 (79 P-7). 

Plaintiff sought employment elsewhere and for a 
period of five months worked for the Southern Pacific 
Company. His earnings totaled $1,225.75, and in- 
curred expenses of $25 per week. because he had to 
live away from home, which said expenses totaled an 
additional $550. From other employment, plaintiff 
has earned $450 to date of trial. He is now employed 
as a filling station operator in Antioch, at $50 per 
week. 

The rate of pay for a recovery operator in Novem- 
ber, 1948, was $1,755 per hour, and, according to the 
evidence, is now $1,825 per hour (55-56). 



10 



ARGUMENT. 

I. AS TO WHETHER NO CONTRACT EXISTED, DUE TO 
UNCERTAINTY AS TO TERMS. 

Practically all the arguments and authorities raised 
by defendant were fully developed and advanced by 
defendant to the District Court below. 

We do not argue with its contention that a contract 
must have a meeting of the minds in that in essential 
terms it must be certain and complete. 

Our contention is, and the District Court so found, 
that this contract was not uncertain. Plaintiff was 
offered and accepted the position in the pulp mill. 
Pursuant to the telephone conversation of October 18, 
1948, the date the Court found to be the date of the 
contract, Lindley, the superintendent, told plaintiff 
that he would be employed in the Recovery Depart- 
ment (138, 196). Certainly both parties understood 
that plaintiff would be employed in the pulp mill's 
recovery department; that is why Lindley marked 
plaintiff's application as he did (138, 139). 

The length of time covered by the contract of em- 
ployment was certain, for the Court found it to be 
permanent. The strongest evidence against defend- 
ant's contention was the testimony of Lindley and 
Stitt, adduced on cross-examination (131-167, 189- 
211). 

There was no question as to which parties were 
obligated under this agreement. As to related con- 
ditions, e.g. vacations, holidays, overtime, shift 
premiums, call-in pay, promotions, seniority, eic^ 
they were all matters which would be covered by the 



11 



collective bargaining agreement between defendant 
(employer) and plaintiff (employee), and the ap- 
propriate trade union, by which agreement all parties 
would abide. The evidence is clear that plaintiff had 
been a union organizer and a member of the craft 
union covering pulp mill workers, and also that de- 
fendant had a collective bargaining contract with the 
union (188, 193). 

There was no aura of mystery surrounding the type 
of work the plaintiff was hired to do, because anyone 
familiar with the paper industry (and the parties 
here were familiar) knows the duties of a recovery 
operator. The defendant was creating a pool of ex- 
perienced pulp mill men. From the material sent to 
defendant by plaintiff prior to the telephone conver- 
sation of October 18, 1948, defendant was well aware 
that plaintiff had had over twenty years' experience 
in recovery departments. The subject matters indi- 
cated in the letter from Stitt to plaintiff (41, 42 P-2) 
and from Lindley to plaintiff (45-46 P-3) set forth 
"pulp miir' and "recovery department" as the place 
where plaintiff w T ould be employed. 

The case of Mason v. Rose, 176 Fed. (2d) 486 
should be read in conjunction with the opinion of 
Federal District Judge Knox (85 Fed. Supp. 300), 
which case was affirmed on appeal, for a thorough 
understanding thereof. The facts are that the plain- 
tiff, who brought suit for declaratory relief under 
an alleged agreement was "getting pretty much of a 
raw deal" for a period of from two to three years as 
a result of the conduct of his employer or partner, 



12 



defendant Rose. During that period, neither party 
had made any contribution to performance of the al- 
leged contract. 

The facts of the above case should be distinguished 
from a case where one or the other of the contracting 
parties has performed, in whole or in part, the terms 
of the contract, and who had suffered financial loss or 
detriment. We believe the Court resorted to Fireside 
Equity to protect Actor Mason who was being ha- 
rassed by defendant Rose, his employer. 

The facts of the instant case are dissimilar. The 
plaintiff has already performed his part of the con- 
tract by quitting a job. (The fact that this job was 
temporary is irrelevant and not worthy of all the 
attention given it by the defendant. Plaintiff states 
that he could have continued with the firm and had 
he done so, by the time of the filing of this suit, would 
have been promoted to the position of a full-fledged 
elevator mechanic, earning $2.50 per hour, even 
though he was a mechanic's helper at the time he 
forsook it in answer to defendant's beckon.) He 
further sold his furniture at a financial loss of from 
$1,600 to $1,700 and moved his family to an un- 
familiar environment three thousand miles away. 
Plaintiff is neither young nor irresponsible. He is 
a ware of and does his best to fulfill his responsibility 
to support his family. Hence, we cannot believe he 
was indulging a whim or satisfying a latent wander- 
lust by traveling across most of the continent with his 
family in tow on the basis of an indefinite, uncertain, 
anc| nebulous promise of employment. 



13 

The following cases are cited in support of plain- 
tiff's position: 

Section 1654 of the Civil Code of California; 
Payne v. Neuval, 155 Cal. 46, 50 ; 
Weil v. California Bank, 219 Cal. 538, 541 ; 
Ezmirlian v. Otto, 139 Cal. App. 486, 493 ; 
Neivby v. Anderson, 217 Pac. (2d) 69; 97 

A.C.A. 83 (April 20, 1950) ; 
Nuland v. Pruyn, 216 Pac. (2d) 526; 96 A.C.A. 

936 (April 6, 1950) ; 
Pike v. Hoyden, 218 Pac. (2d) 578; 97 A.C.A. 

669 (May 17, 1950) ; 
Stockton Dry Goods Co. v. Girsh, 221 Pac. 

(2d) 186; 99 A.C.A. 14 (August 11, 1950) ; 
Arrow Flying Service v. Universal Flyers 

Ground School, 221 Pac. (2d) 231 ; 99 A.C.A. 

66 (August 18, 1950). 

In each of the foregoing cases, including Section 
1654 of the Civil Code, the contract is construed most 
strongly against the drafter. The contract is con- 
strued most strongly against the person who could 
have made it more definite and explicit. In Stockton 
Dry Goods v. Girsh, supra, the Court went further 
and held that a contract must be construed in such a 
manner as to make it work. 

Who could have made this contract more definite? 
Are we to believe at this time that defendant's agent 
Stitt, fortified with his experience in personnel rela- 
tions, had deliberately permitted an uncertain condi- 
tion to exist which would provide him a loophole 
through which he could wnpo his legal responsibility ? 



14 



Plaintiff's words and deeds throughout this series 
of events were said and done in absolute good faith. 

We contend that there was no uncertainty. 

If by any stretch of the imagination uncertainty 
can be adduced, the defendant is responsible and was 
in a position to have remedied it. The situation 
would be such where the law would hold that the 
drafter, who could have made the contract more defi- 
nite, is responsible. 



II. AS TO WHETHER THE LIABILITY OF DEFENDANT WAS 
DISCHARGED BY PLAINTIFF'S REJECTION OF AN OFFER 
OF PERFORMANCE. 

To give credence to defendant's argument, it is 
necessary that we discount the findings of the Dis- 
trict Court, which are: 

"6. That it is true that when the employment 
for which plaintiff was contracted became avail- 
able, defendant corporation refused, and does 
now refuse, to fulfill the terms of the said con- 
tract, and refused, and does now refuse, to em- 
ploy the plaintiff. 

7. That it is true that plaintiff has performed 
all of the things and matters on his part to be 
performed under the terms of the said contract 
and that defendant corporation has wholly failed 
to perform the things and matters on its part to 
be performed under the said contract of employ- 
ment. 

(33). 



* * *y> 



On August 28, 1949, Lindley told the plaintiff that 
lie was "through", and when plaintiff, in compliance 



15 

with orders, reported to the San Joaquin Division on 
August 31, 1950 he was offered a job as a broke baler 
at the paper mill (plaintiff's qualifications were for 
pulp mill work) at $.115 per hour less than he had 
been paid for his temporary work. 

It is plaintiff's contention that Mr. Stitt must have 
realized the company's legal responsibility to the 
plaintiff and had sought to rectify the damage caused 
by the arbitrary action on the part of Mr. Lindley, 
at the same time making a feeble effort at what might 
be construed as fulfillment of contract on the defend- 
ant's part. The tactic used was to place the plaintiff 
in the position where he would, by a simple arithmet- 
ical process, refuse the offered job and hence be the 
one to breach the contract. 

Defendant's conduct is analogous to that of a hit 
and run driver. As this Court knows, flight on the 
part of a criminal suspect is evidence for the consid- 
eration of the Court or the jury as an admission of 
guilt, placing suspicion that he has committed the 
offense on the one who flees. Defendant's awareness 
that it had committed a wrong and violated a promise, 
a clear admission that there was a pre-existing con- 
tract, and its attempt to divest itself of its legal re- 
sponsibility is evidenced by the aforementioned offer 
to plaintiff of a low-paying menial job, which de- 
fendant well knew was not commensurate with plain- 
tiff's qualifications. 



16 



III. AS TO WHETHER THE ALLEGED CONTRACT WAS 
UNENFORCEABLE FOR LACK OF MUTUALITY. 

The evidence showed the contract of employment 
was permanent and the Court so found. It is not for 
plaintiff to determine the legal effect of a contract; 
that is for the Court to determine. If defendant 
wishes to be bound by plaintiff's opinion, then it 
should be consistent, confess a judgment on the plead- 
ings, and pay to plaintiff the full amount of the 
damages in accordance with the complaint. 

Both parties could have breached this contract, and 
if either one did, he should be ready to respond in 
damages. 

It is fallacious to argue that defendant could not 
have sued plaintiff for a breach of contract while 
he still resided in Alabama. At that time the contract 
was a unilateral one. When plaintiff accepted the 
job offer, came to California, and accepted the benefits 
of the temporary employment, the contract became 
bilateral and binding on both parties. The leading 
case concerning bilaterality in California is Los An- 
geles Traction Co. v. Wilshire (1902), 135 Cal. 654, 
658. 

Assume that after the conversation of October 18, 
1948, the letter by Mr. Lindley of October 19, 1948 
had enclosed a check for plaintiff's transportation, 
and plaintiff had cashed the check but refused to 
perform, would he not have been guilty of a breach 
of contract had defendants sued for nonperformance? 

The case of Pike v. Hoyden, supra, decided May 
17, 1950, concerns the mutuality of a landlord-tenant 



17 

relationship where the lessees were let into possession 
and the lessors accepted the rents without objection 
over a period of months, and the Court holds that if 
there were any lack of mutuality of remedy, such lack 
was brought about by the lessors. 

The same yardstick applies to the case at bar : per- 
formance on the plaintiff's part, acceptance of per- 
formance by defendant, and its subsequent breach. 

In Arrow Flying Service v. Universal Flyers 
Ground School, supra, decided August 18, 1950, the 
lower Court in its interpretation of a pleaded con- 
tract sustained the demurrer because it felt that on 
its face, the contract showed a lack of mutuality. 
The Court of Appeals reversed that ruling and held 
that a contract is to be interpreted to give effect to 
the mutual intention of the parties at the time it was 
made, citing Brawley v. Crosby Research Foundation, 
Inc., 73 Cal. App. (2d) 392, 397. 

"Lack of mutuality is tantamount to want of 
consideration, and where, as in this case, sufficient 
consideration is otherwise present, mutuality is 
not essential. It becomes essential only when its 
absence would leave a party without a valid or 
available consideration for his promise.' ' 

The consideration given by plaintiff has been repeated 
many times. Further repetition is unnecessary. 



18 



IV. THE ALLEGED CONTRACT WAS ENFORCEABLE AND WAS 
NOT TERMINABLE AT THE WILL OF EITHER PARTY. 

Relying on defendant's promise that he would be 
given a permanent position in its pulp mill which was 
to open in the near future, plaintiff quit a job pay- 
ing $1.58 per hour, sold his furniture at a loss of 
$1,600.00 and removed his family from Tuscaloosa, 
Alabama, to Antioch, California. 

In Seifert v. Arnold Bros., Inc., 138 Cal. App. 324, 
the plaintiff entered into a conditional sales contract 
to buy an automobile from defendant. In considera- 
tion for said purchase, defendant agreed to give plain- 
tiff employment as evidenced by a letter, as follows: 
"* * * In consideration of your purchasing an 
Essex coupe, we are offering you employment at 
the rate of $80 per month. This employment is 
to be steady as long as your services are satisfac- 
tory." (P. 325.) 

After three months, plaintiff, along with other em- 
ployees, was discharged because of bad business con- 
ditions. (This was during the last depression.) The 
trial Court found that plaintiff had performed his 
work properly and he had not been employed for a 
reasonable period, and entered judgment in plaintiff's 
favor. The Appellate Court affirmed the judgment 
and held as follows: 

"The employment was in consideration of the 
purchase of an automobile from appellants and 
[that] the rule is clear that the employment could 
only be terminated under conditions which render 
it reasonably just and proper to do so." (P. 326.) 



19 



In Millsap v. Natl. Funding Corp. of Calif., 57 Cal. 
App. (2d) 772, the plaintiff gave up a job paying $90 
per month and went to work for the defendant for a 
reasonable length of time, at a beginning wage of $100 
per month, to be increased at the end of two months 
to $110. The trial Court found that plaintiff had been 
discharged without cause and found two years to be 
a reasonable period of employment. The damages 
were calculated on this basis. The plaintiff testified 
at the trial that she would not have quit her job had 
defendant not offered her a permanent job. The 
appeal Court's holding, at page 776, was as follows: 
"In view of the recognized definition of con- 
sideration, codified in section 1605 Civil Code, 
which makes any prejudice suffered or agreed to 
be suffered by the promisee as an inducement to 
the promisor, which the promisee is not legally 
bound to suffer, good consideration for a promise, 
it is hard to follow the reasoning of those cases 
from other jurisdictions which hold that the giv- 
ing up of other employment cannot afford suf- 
ficient consideration for a promise of permanent 
employment. Where the prospective employee 
clearly states to his prospective* employer, as in 
the case before us, that he will not give up his 
present employment unless the prospective em- 
ployer will agree to give him permanent employ- 
ment and the prospective employer expressly 
agrees to those terms, it seems clear that the 
prospective employee (to paraphrase the lan- 
guage of section 1605 of Civil Code) in giving 
up his present employment suffers a prejudice 
as an inducement to the promisor for his promise 
of permanent employment. 'It is not necessary 



20 



to the existence of a good consideration that a 
benefit should be conferred upon the promisor. 
It is enough that a " prejudice be suffered or 
agreed to be suffered" by the promisee/ (6 Cal. 
Jur. 171.) We therefore hold that there was suf- 
ficient consideration for the promise of perma- 
nent employment (construed by the court in this 
case as employment for a reasonable period) in 
accord with the rule laid down in the following 
cases: * * *" 

The case of Thacker v. American Foundry, 78 Cal. 
App. (2d) 76, cited by appellants in its brief, is not 
in point, for the Court, at page 84 said as follows: 
"* * * In the first place, neither the pleadings 
nor the findings make mention of a failure to 
continue plaintiff's employment for a reasonable 
time, nor that the term of approximately one 
year and three months during which plaintiff 
was so employed was not for a reasonable 
time. * * *" 

An examination of the facts of the case at bar 
reveals that the employer (defendant) was in dire 
need of experienced and qualified workmen for its 
new pulp mill plant that was about to open. These 
workmen were needed so badly that defendant placed 
an advertisement in a paper trade journal, giving its 
reply address as "Box 24, Southern Pulp & Paper 
Manufacturing; 75 Third Street, N. W. ; Atlanta, 
Georgia." (39 P-l, 190-193.) 

Defendant's eagerness is best evidenced by the fact 
that plaintiff's letter, dated August 26, 1948, was 
answered by Stitt immediately (letter dated Septem- 



21 

ber 1, 1948) (41 P-2). Why no less a personage than 
the plant manager himself should devote personal 
attention to the routine matter of answering an ap- 
plication is brought out by Mr. Stitt 's testimony to 
the effect that the defendant corporation at that time 
desperately needed three hundred qualified workmen. 
Hence, the plaintiff was the answer to defendant's 
prayer and an extremely desirable prospective em- 
ployee. 

We therefore have every right to assume that when 
Lindley entered upon his job on October 1, 1948, he 
was briefed by Stitt personally about the plaintiff 
since Stitt had handled the original correspondence. 
Lindley 's reaction to Townsend's (the plaintiff's) 
telephone call is the best indication of the above as- 
sumption. By Lindley 's own testimony, we know 
that he went to the personnel office and dictated the 
letter to be sent to plaintiff (45-46 P-3) not trusting 
his personnel manager, Gordon McCuish, to take care 
of the matter. Why? Because plaintiff was too 
valuable a man to let slip through defendant's fingers 
at the time, and it is our contention that the plain- 
tiff was a " fair-haired boy" until defendant realized 
he was "too good a union man". 

The above discussion is necessary in order to deter- 
mine what actually transpired since the testimony of 
defendant's employees does not coincide with the 
plaintiff's at crucial points. This District Court lias a 
right and a duty to reach a conclusion from all the 
evidence as to what really happened in view of all the 
surrounding facts and circumstances. 



22 



In evaluating the circumstances, the District Court 
must have taken into account the plaintiff's economic 
insecurity as against the defendant corporation's 
wealth and economic strength. This was not for the pur- 
pose of "soaking the rich and giving it to the poor" 
but for the sole purpose of examining the motive be- 
hind defendant's acts. Reasonable men can reason- 
ably conclude that the employer (the defendant) con- 
sidered the plaintiff an excellent "catch" when the 
plant manager sent plaintiff (a prospective employee) 
a personal letter and then followed up a telephone 
conversation with a letter to "cinch the deal" (45-46 
P-3). 

It is illogical to assume that a workman would 
quit a job paying $250 or more a month in his own 
environment, sell his furniture at a loss, uproot his 
entire family, leave his home like a "pack rat" and 
travel over half the continent unless he had actually 
and definitely been assured of permanent life employ- 
ment with a new growing industry. 

Certainly it would have been wiser had plaintiff 
employed an attorney and protected himself in every 
detail before "pulling up stakes", but the Court can- 
not and should not penalize this plaintiff for having 
had faith and confidence in the words, deeds, writ- 
ings, and essential integrity of the defendant corpora- 
tion's agents, servants, and representatives, and for 
having believed that permanent lifetime employment 
in a field in which he was experienced was his, and 
which in addition offered him an opportunity to own 
his own home. 



23 



V. THE STATUTE OF FRAUDS IS NOT APPLICABLE. 

Our contention is that the written evidence is suf- 
ficient to constitute a contract, and we have already 
referred to the extent of parol evidence that is per- 
mitted in the event of ambiguity or uncertainty. 

Since defendant raises the question of the Statute 
of Frauds, we will examine that for its applicability 
to the case at bar. We might point out at the outset 
that said statute does not apply under more than one 
consistent theory, and for this limited purpose assume 
that there was no writing at all. 

First theory. 

An oral contract capable of being performed within 
a year is not within the statute, though by its terms 
it is not to be performed within a year. (See Colum- 
bia Pictures Corp. v. DeToth, 87 Cal. App. (2d) 
620, 631-635. Also 49 Am. Jur., 387, sec. 25, and page 
391, sees. 29 and 30.) 

The Court is familiar with the legion of cases, espe- 
cially employment cases, which have ruled that the 
terms "for life", " forever", or, as in the instant case, 
" permanent", are construed to mean that the con- 
tracts could be performed within a year, even though 
the relationship exists over a period of years. Death 
could and can intervene at any time is the theory 
followed. (See Sections 51 and 58 of 49 Am. Jur., 
409, which clearly spells this out.) 

Second theory. 

The Court is familiar with the estoppel doctrine 
where the application of the statute would result in a 



24 



fraud and would inhere in the resultant unconscion- 
able injury from denying enforcement of a contract 
after one party has been induced to change his posi- 
tion seriously by the other party in reliance on the 
contract, or where fraud inheres in the unjust enrich- 
ment of a party who has received the benefits of an- 
other's performance, were he allowed to rely on the 
statute. 

The Court is familiar with Seymour v. Oelrichs, 
156 Cal. 782 and the subsequent cases. Many Courts 
have mistakenly limited the application of the doc- 
trine of the Seymour cases to only those cases where 
the promisor promised a contract in writing, but the 
recent decision in Monarco v. LoGreco, 220 Pac. (2d) 
737; 35 A.C. 669 (August 1, 1950) wherein, after a 
scholarly discussion of the law, Justice Traynor holds 
that a promise to make a written contract is not neces- 
sary when the unconscionable injury is present. 

Third theory. 

The law applicable to a written memorandum 
against the party to be charged is clearly applicable 
here. A discussion thereof is unnecessary. 

Fourth theory. 

Part performance by the party seeking to enforce 
the agreement removes the parol agreement from the 
category of actions covered by the Statute of Frauds 
(49 Am. Jur. 427, 436, 471). 



25 



CONCLUSION. 

For the foregoing reasons it is respectfully sub- 
mitted that the judgment of the District Court should 
be affirmed. 

Dated, San Francisco, California, 
February 29, 1942. 

C. K. CURTRIGHT, 

Charles R. Garry, 

Attorneys for Appellee. 



No. 13,141 

IN THE 

United States 
Court of Appeals 

For the Ninth Circuit 



FlBREBOARD PRODUCTS INC., 

a Corporation, et al., 

Appellant, 
vs. 

W. H. TOWNSEND, 

Appellee. 



Reply Brief of Appellant Fibreboard Products Inc. 



T. R. Meyer, 
F" Z3 Samuel L. Holmes, 

Brobeck, Phleger & Harrison, 

111 Sutter Street, 
MAR 10 1952 San Francisco 4, California, 

Attorneys for Appellant 
PAUL P. O'BRlEM Fibreboard Products Inc. 



CL 



ERI? 



PARKER PRINTING COMPANY, ISO FIRST STREET, SAN FRANCISCO 



SUBJECT INDEX 



Page 
I. No Contract Existed Due to Uncertainty as to Terms 1 

II. Liability of Defendant Was Discharged by Plaintiff's 

Rejection of an Offer of Performance 7 

III. The Alleged Contract Was Unenforceable for Lack of 
Mutuality 7 

IV. The Alleged Contract Was for an Indefinite Time and 
Was Unenforceable as It Was Terminable at the Will 

of Either Party 9 

V. The Alleged Contract Is LTnenforceable Due to the Stat- 
ute of Frauds. 11 

VI. Conclusion 15 



TABLE OF AUTHORITIES CITED 



Cases Pages 

Brawley v. Crosby Research Foundation, 73 C.A.2d 302 8 

Columbia Pictures Corp. v. DeToth, 87 C.A.2d 620 12 

Ellis v. Klaff, 96 C.A.2d 471 12 

Mason v. Rose, 176 F.2d 486 2 

MilLsap v. Natl. Funding Corp., 57 C.A.2d 772 9, 13 

Pike v. Hayden, 97 C.A.2d 609 8 

Ruinello v. Murray, 36 C.2d 687, 227 P.2d 251 9, 13, 14 

Seifert v. Arnold Bros. Inc., 138 C.A. 324 9 

Seymour v. Oelrichs, 156 C. at 793 14 

Standing v. Morosco, 43 C.A. 244 11 

Thacker v. American Foundry, 78 C.A.2d 76, at 85 9 

Townsend v. Flotill Products, Inc., 82 C.A.2d 863, 866 10 

Texts 
49 Am. Jur. 410 12 



No. 13,141 

IN THE 

United States 
Court of Appeals 

For the Ninth Circuit 



FlBREBOARD PRODUCTS INC., 

a Corporation, et al., 



vs. 



W. H. TOWNSEND, 



Appellant, 



Appellee. 



Reply Brief of Appellant Fibreboard Products Inc, 



We have stated the essential facts of the case in our 
opening brief and therefore take issue with plaintiff's state- 
ment of facts only in the course of the ensuing argument. 

I. NO CONTRACT EXISTED DUE TO UNCERTAINTY AS TO 
TERMS. 

We have cited many cases to the effect that the terms of 
a contract must be certain and definite or the contract is 
not enforceable, with which plaintiff does not disagree. The 
issue then becomes a factual one. We have shown that there 



2 

is no evidence that the parties agreed to the employment of 
plaintiff on October 18, 1948. The finding of the District 
Court on that issue is contrary to the evidence. There could 
be no contract of employment on that date for there was 
no agreement on the job which was the subject of the con- 
tract. That uncertainty is fatal to plaintiff's case. 

The only evidence of a possible agreement on a par- 
ticular job was plaintiff's testimony relative to November 
15, 1948, and at that date there could be no consideration 
for a promise by the defendant and the most that could 
have resulted would have been a relationship terminable at 
will. Plaintiff had to persuade the District Court the con- 
tract was entered on October 18 in order to justify a finding 
that the alleged agreement was not terminable at any time. 
This aspect is referred to later and we will proceed to 
analyze plaintiff's explanation of the lack of evidence to 
support the finding of the trial court. 

Plaintiff's brief, despite petty distortions and misstate- 
ments, has been unable to demonstrate any proof of the 
definite terms of the contract the District Court found. 

In the third paragraph of page 10 of the brief it is stated 
plaintiff was offered and accepted "the position in the pulp 
mill." That assertion is meaningless for there were many 
positions in the pulp mill and even the plaintiff stated none 
was specified until November 15th, after he had moved to 
California and about a month later than the date the Dis- 
trict Court found a contract to have been entered (95, 96-7). 

In the same paragraph it is asserted that, pursuant to 
the telephone conversation of October 18, Lindley told 
plaintiff he would be employed in the recovery department. 
The assertion is not true and the pages cited in support 



3 

of the assertion (138 and 196) may be searched in vain 
for proof of it. Even if the assertion were true, it does 
not specify which of the many jobs in the recovery depart- 
ment was intended. 

The classification of plaintiff's application in defendant's 
records is not evidence of a contract. That act was some- 
thing plaintiff had no knowledge of and Lindley was unable 
to state whether it was done before or after the October 18 
telephone conversation (138). Lindley merely marked the 
application for a likely department from the standpoint of 
his experience. Again we point out the vast difference 
between a department and a specific job. 

When plaintiff's brief progresses to the second para- 
graph of page 11, the job of recovery operator is first 
mentioned, but the reference to the evidence later in that 
paragraph again falls back upon the generalizations of 
"pulp mill" and "recovery department." The generaliza- 
tions of the brief do not supply the evidence which is 
absent from the record. 

The plant in question is composed of three main parts — 
a pulp mill and a paper mill and a wood room (113). Mr. 
Stitt further subdivided them as pulp mill, board mill, 
wood mill, maintenance, power and office (212). The total 
number of jobs is 400, of which 70 are in the pulp mill (193, 
212). The pulp mill has, as one of its departments, a re- 
covery department. In the recovery department are many 
individual jobs (221), such as digester cook, evaporator 
operator, tour foreman, board machine operator and so 
on. General reference to the subdivision ■ pulp mill or to 
the department called recovery department are not refer- 
ences to a specific job. Discussion of a place where a per- 



4 

son might be employed is not the equivalent of an agree- 
ment to employ in a specific job. 

Plaintiff has attempted to minimize the decision in Mason 
v. Rose, 176 F.2d 486, by accusing the 2nd Circuit Court, 
one of the most respected courts in the nation, of pervert- 
ing the law : resorting to "Fireside Equity." Plaintiff would 
also distinguish the case, asserting that nothing was done 
under the alleged Rose-Mason contract. On the contrary, 
it appears from the opinion of the lower court that Mason 
came to the United States from England and could not get 
employment for a long time because of the existence of the 
alleged contract. The case is not to be explained away. It 
is excellent authority for the rule that an employment con- 
tract must be definite and certain in order to be valid and 
enforceable. 

Plaintiff next goes all out for a proposition that is beside 
the point, i.e., that a contract is construed most strongly 
against the drafter. (Eight of the cases cited by plaintiff 
support this irrelevant argument.) 

It seems quite clear that before a contract can be con- 
strued against its drafter there must be a contract to con- 
strue. Where is this contract? What are its terms? We 
have already shown that it is missing its indispensable 
subject matter, namely, the job in which defendant was 
supposed to hire plaintiff, and lacking in all of its essential 
terms except the forlorn claim that the duration was "per- 
manent." 

The power to construe a contract cannot be stretched to 
include supplying essential terms that the evidence shows 
were not agreed on. This alleged contract died aborning 
and there is nothing to construe. 



5 

Even if the rule plaintiff urges were in fact applicable, 
how would it be applied? Did not the plaintiff himself 
write the first letter on August 20 and apply for "one of 
the jobs" at the new plant (39, p. 1)1 Against whom but 
the plaintiff is that ambiguity to be construed ? 

Did not the plaintiff write a second letter on September 
7 in which he stated he would appreciate "any job you 
people have to offer me" (90 D-A) ! Against whom is that 
uncertainty to be construed! 

Did not the plaintiff draft both those letters I 

Did not the plaintiff file an amplication which stated, as 
to kind of work desired, "pulp mill tour foreman" (93 D- 
B) 8 The evidence shows that tour foreman is not the same 
job as recovery operator. Against whom then is that docu- 
ment to be strongly construed ! 

Plaintiff posed the rhetorical question of who could have 
made this contract more definite. The answer is quite plain 
that he could have. But he knew very well that he was not 
contracting for a job in that correspondence. He was just 
negotiating. Neither his correspondence nor the defend- 
ant's amounted to anything more than that. Belaboring the 
letters to make them seem something they are not cannot 
supply the proof of an agreement between the parties as to 
any definitely ascertainable employment. 

This plaintiff has testified unequivocally that the job of 
recovery operator was never mentioned until after he 
arrived in California and that he then selected the job 
when he was offered his choice (95, 96-7, 54, 55). This 
occurrence, according to plaintiff's own testimony, was on 
November 15, nearly a month later than the date when the 
District Court found that agreement on the recovery opera- 
tor job had been reached. 



6 

It is clear and unmistakable that these parties simply 
had not agreed on employment of the plaintiff when he 
undertook to move himself to the place where the plant 
was being built. The contrary findings of the District Court 
are without basis in the evidence and are contrary to the 
evidence. 

We have shown that plaintiff's correspondence does not 
mention the job of recovery operator. We have also shown 
that defendant's letter of September 1 (41 P-2) cautioned 
plaintiff that the company was making no commitments, 
and the letter of October 19 (45 P-3) advising plaintiff 
that he might have temporary work, made no mention of 
permanent employment. It had as its subject a phrase 
which would clearly illumine the mind of a reasonable man 
to the fact that it was not a contract of employment : 

"Possibility of Employment in Eecovery Department" 
(emphasis supplied). 

The only certain thing in the exchange of correspondence 
is that the parties had not agreed to plaintiff's employment. 
That is made doubly clear when the letters are read in con- 
nection with plaintiff's testimony of the conversation of 
October 18 : 

"Q. (By Mr. Holmes): When did Mr. Lindley say 
anything to you about the job as recovery operator? 
A. On the 15th of November. 

Q. He didn't say anything about the recovery oper- 
ator's job in your telephone conversation? 

A. No, sir ; he told me Mr. Stitt had given him my 
recommendation from the North Carolina Pulp Com- 
pany and my application for employment and it seemed 
I was an experienced Kraft pulp mill man. 

Q. He didn't promise you any particular job at 
all? 
A. That's right. 



7 

Q. You didn't know what it would be ? 

A. Presumably it would be a tour foreman's job. 
That was the last job I had. 

Q. Which was what you applied for 1 

A. Yes, sir. 

Q. That is what you wanted? 

A. That is what I wanted. 

Q. He didn't promise you that or any other job 
on October 18th. [73] 

A. No, sir; he just told me if I would come down 
they would place me in one of the other mills until 
such time, and that I could work in that until it was 
open, and I could stay here and the company would 
help me buy a home if I wasn't able to buy one." (96-7) 

II. LIABILITY OF DEFENDANT WAS DISCHARGED BY PLAIN- 
TIFF'S REJECTION OF AN OFFER OF PERFORMANCE. 

Plaintiff has admitted that he was offered a job at the 
plant on August 31, 1950 (should read 1949) (Brief, p. 15). 
We have asserted that, since no specific job was ever agreed 
to, that offer, which was rejected, discharged any obliga- 
tion to him. Plaintiff's attempt to find an admission of 
responsibility in that offer is without merit and the analogy 
to criminal law is not worthy of reply. Our assertion stands 
unrefuted. 

III. THE ALLEGED CONTRACT WAS UNENFORCEABLE FOR 
LACK OF MUTUALITY. 

The plaintiff seeks to meet our argument on lack of 

mutuality by twisting this case into a unilateral contract 

which became bilateral. Plaintiff misses the point. The 

lack of mutuality lay in the absolute right reserved by 

plaintiff to quit at any time. He did not bring himself 



8 
within the theory of the case of Brawley v. Crosby Research 
Foundation, 73 C.A.2d 302, for in that case 60 days' notice 
of termination was required and the defendant had to pay 
minimum royalties during that period. The theory of mu- 
tuality and consideration in that type of case has no appli- 
cability where no notice of termination is required and the 
power to end the alleged agreement at any time is abso- 
lutely reserved. If there is a requirement to perform during 
a stated period before the termination notice becomes effec- 
tive, both mutuality and consideration are present. How- 
ever, when the unconditional power to terminate at will is 
reserved, the difference between mutuality and considera- 
tion is clear. Consideration is present so long as the person 
performs, but mutuality is never present, Under plaintiff's 
theory here defendant was supposed to be bound perma- 
nently, but plaintiff was to be bound only so long as he 
chose to be and there is not even the requirement of rea- 
sonable notice to give a semblance of mutuality. The law 
does not enforce such contract. 

In the matter of Pike v. Hayden, 97 C.A.2d 609, the only 
thing lacking was the formal written lease, which the lessor 
himself had withheld; his own default could not give rise 
to the defense of lack of mutuality. Here the terms of the 
contract are not proved and the right of plaintiff to end 
the alleged agreement at any time is established by his own 
testimony, elements which were not raised or considered 
in the Pike case. 

Our argument on this phase of the case is supported by 
a number of well-considered cases which plaintiff has 
ignored. We need not repeat the application of the sound 
principles they stand for; it is sufficiently discussed in our 



opening brief and is neither refuted nor distinguished by 
plaintiff. 

IV. THE ALLEGED CONTRACT WAS FOR AN INDEFINITE TIME 
AND WAS UNENFORCEABLE AS IT WAS TERMINABLE AT 
THE WILL OF EITHER PARTY. 

Plaintiff asserts that the alleged contract in this case is 
within the exception to the rule that contracts of employ- 
ment for an indefinite period are terminable at the will of 
either party. It is claimed that there was consideration, as 
in Seifert v. Arnold Bros. Inc., 138 C.A. 324, and in Millsap 
v. Natl. Funding Corp., 57 C.A.2d 772. The narrow field 
of those cases is stated at 57 C.A.2d 776 to be the situation 
"where the prospective employee clearly states to his em- 
ployer * * * that he will not give up his present employment 
unless the prospective employer will agree to give him 
permanent employment and the prospective employer ex- 
pressly agrees to those terms * * *" 

This plaintiff gave up a temporary job which would have 
expired in a week or two. Thacher v. American Foundry, 
78 C.A.2d 76, at 85, shows that to be insufficient considera- 
tion to come within the Millsap doctrine. That the giving 
up of employment held only at will is of no legal significance 
is discussed below in connection with Ruinello v. Murray, 
36 C.2d 687, on the statute of frauds issue. 

Plaintiff has attempted to show his great bargaining 
power in getting defendant to make the alleged promise 
to him by distorting the importance of certain facts. For 
example, Stitt, the manager, answered his letter. But Stitt 
had nothing to do at the time but send out form letters to 
applicants, for the plant was far from built and he had no 
one to do it for him (208-9). Contrary to plaintiff's asser- 



10 
tion, defendant did not need any men desperately, let alone 
300. The evidence showed that only 25 out of 68 in the pulp 
mill were to be hired from out of the area (146-7) and, 
when plaintiff first wrote, the plant opening was not ex- 
pected for six months. In answering this part of our argu- 
ment plaintiff passes on to foolish and exaggerated assump- 
tions which are without basis in the evidence and required 
no discussion. 

No reasonable man could believe that a contract of em- 
ployment was agreed to in the exchanges of correspondence 
exhibited in this case, but plaintiff's eagerness to get at 
the head of the line when the new plant opened led him to 
move to California. He speculated he could have gone to 
North Carolina with his last employer, but that speculation 
has no evidentiary value. An express contract of employ- 
ment must be shown by something more than deductions 
and conclusions of the witnesses. Townsend v. Flotill Prod- 
ucts, Inc., 82 C.A.2d 863, 866. His history is entirely con- 
sistent with his action in moving to California. He was not 
rooted anywhere and had no prospects where he found 
himself in 1948. The facts show that, at the time he first 
wrote to defendant, he was working as a helper on an ele- 
vator construction job which lasted three months. Prior to 
that job he had spent three years in about eight short-term 
jobs in several industries (no pulp or paper mills) in sev- 
eral different states. He had worked in a pulp and paper 
mill from 1928 to 1935 and from 1937 to 1945. By 1948 he 
had not been in the industry for three years and had not 
operated machinery as a worker since 1940 (86-90, and 94, 
D-B). 



11 

Plaintiff hurriedly departed for California even though 
he knew that no particular job was discussed in his tele- 
phone conversation and none was mentioned in the letter 
he received after that. In view of those facts he could not 
have been induced to move to California by any prospect 
of a job as recovery operator. He moved at his own risk 
and on his own speculation. Therefore his move could not 
be consideration sufficient to place the alleged agreement 
in the exception to the rule that indefinite term contracts 
are terminable at will. On November 15, when, plaintiff 
testified, he selected the job of recovery operator, he was 
just another volunteer appearing at the plant and there was 
no consideration for any promise on that date. If migrat- 
ing to California from Alabama could be considered a detri- 
ment, which we doubt, it was one voluntarily undertaken by 
the plaintiff and not a result of any promise of a job as 
recovery operator. 

We submit that the general rule applies here and, no con- 
tract having been entered upon a consideration, the rela- 
tion of the parties was terminable at any time, even before 
employment began. The facts are very similar to Standing 
v. Morosco, 43 C.A. 244, where the plaintiff ended employ- 
ment in another state and moved to California and the 
court found there was no enforceable contract. 

V. THE ALLEGED CONTRACT IS UNENFORCEABLE DUE TO 
THE STATUTE OF FRAUDS. 

The statute of frauds raises problems which plaintiff has 
not even tried to answer. 

In the first place the requirement of an adequate mem- 
orandum setting forth the essentials of the agreement, 



12 

signed by the party to be charged, is not met. We have 
already discussed the only writings in this case and their 
inadequacy to show the terms of a contract. It is sufficient 
merely to refer to Ellis v. Klaff, 96 C.A.2d 471. 

Plaintiff cited Columbia Pictures Corp. v. DeToth, 87 
C.A.2d 620, for a proposition it does not stand for. To be 
outside the statute of frauds, an oral contract must be 
capable, by its terms, of being x>erf ormed within a year. If 
by its terms it is not to be performed within a year, it is 
within the statute. Plaintiff has not shown, and cannot 
show, how a contract for two years' employment can be per- 
formed in a year. 

Plaintiff argues that death could intervene within a year 
and thus a contract for permanent employment would be 
fulfilled. Plaintiff fails to take into consideration the dif- 
ference between employment "for life," and "permanent" 
employment. Employment "for life" is subject to the con- 
tingency of death and the happening of the contingency 
would provide full performance. "Permanent" employment, 
on the other hand, is not a contract upon a contingency. 
Death merely excuses full performance. It is an excuse for 
non-performance; it is not performance of the contract. 

The blunted legal reasoning of some courts has failed to 
recognize this distinction, but it is sound and is recognized 
even by the text plaintiff relies on (American Juris- 
prudence). See 49 Am. Jur. 410. Plaintiff referred to Sec- 
tion 51 of the article on statute of frauds in that volume, 
but apparently failed to read Section 52. The last sentence 
of the latter section states that the cases relied on for plain- 
tiff's view "are no longer regarded as of controlling effect." 
It is to be further noted that in none of the old cases sup- 



13 
porting plaintiff's view is there a finding, and state deci- 
sions to support such finding, that "permanent" means two 
years, as was found by the District Court on the authority 
of the Millsap case. 

The alleged contract that plaintiff sues on was, according 
to his contentions and according to the finding of the Dis- 
trict Court, a "permanent" contract and it was further 
found that "permanent" means two years. Therefore, the 
object to be accomplished by the alleged contract could not 
have been completed within one year and the statute 
applies. 

Plaintiff next urges that the statute does not apply due 
to some estoppel. The application of the rule is not devel- 
oped in the brief, making it difficult to answer the assertion, 
but we respectfully point out that the District Court was 
not persuaded that any estoppel was involved in the case 
for it made no finding thereon. The complete answer to 
plaintiff's argument on estoppel is contained in the decision 
of the Supreme Court in Ruinello v. Murray, 36 C.2d 687, 
227 P.2d 251. It is apparent that the looseness of some 
courts in finding an estoppel is not in accordance with the 
law as viewed by the California Supreme Court. 

The facts here do not show any unjust enrichment of 
defendant through a failure to hire plaintiff as recovery 
operator or any unconscionable injury, and the District 
Court found none. The job plaintiff thought he might have 
continued by moving to North Carolina is not a sufficient 
detriment under the Ruinello case. The special damages 
plaintiff sought were not the result of any unconscionable 
injury for the District Court specifically found they were 
not promised him. (See Order for Judgment, 30.) Plaintiff's 



14 

move to California took place after his receipt of a letter 
which promised at most temporary employment and he 
was not induced to move by any promise of a permanent 
job. If the migration could be considered an injury, it did 
not result from defendant's representations. It is to be 
noted in this connection that "unconscionable injury" must 
be substantial injustice and not the slight detriment which 
might be sufficient as consideration for a promise. The 
facts both as found by the District Court and as disclosed 
by the evidence do not support an estoppel to plead the 
statute. It is a complete defense. 

At this point in his brief plaintiff raised again the ir- 
relevant issue disposed of above concerning construction 
of a written instrument and then suggested that part per- 
formance removes the alleged contract from the operation 
of the statute. We are unable to see in the citations in the 
brief any support for this argument. Plaintiff ignores the 
California cases directly on the point, which establish the 
law diametrically opposite to his argument. Part perform- 
ance of an employment contract does not render the 
contract valid and enforceable. Even Seymour v. Oelrichs 
recognized that. See 156 C. at 793. The principle is recog- 
nized again in the Ruinello case for the plaintiff there had 
quit what he alleged was a "permanent life-time position" 
and had worked in the service of the defendant and he still 
could not state a cause of action for breach of contract. 

If there ever was an employment "contract" to which 
the statute of frauds should be applied, this is the case. 
The makeshift of stray fact and active fancy pieced to- 
gether by the loquacious aggressiveness of this plaintiff 
(only faintly revealed in cold type) is just what the statute 



15 

of frauds was designed to protect against. The play upon 
sympathy, the demagogic comparison of the economic cir- 
cumstances of the parties, the hyper-imaginative imputa- 
tions of evil motives to defendant's employees, displayed in 
plantifPs brief, all exemplify reasons for the existence and 
operation of the statute. The statute of frauds was meant 
to protect against such claims as this plaintiff's and this 
Court should unhesitantly apply it. The alleged contract 
fails to meet the standards set by law and is invalid and 
unenforceable. 

VI. CONCLUSION. 

We have demonstrated herein and in our opening brief 
that no contract, oral or written, was entered between these 
parties, for the subject of the contract, the job plaintiff 
claims he was hired for, was never agreed upon. There is 
absolutely no evidence that they agreed on October 18, 
1948, that he would be employed as a recovery operator. 

The written documents fail to meet the requirements of 
the statute of frauds and plaintiff has not shown that that 
statute does not apply. 

Even were the plaintiff able to meet these two issues 
successfully his action would still fail for he has shown 
no excuse for his failure to accept an offered job and any 
alleged contract would lack mutuality and would be ter- 
minable at will without liability. 

This Court should reverse the judgment upon any of 
these grounds for each is sound and well-supported, but 
primary among them is the failure of proof that any con- 
tract was entered. 



16 

The judgment of the District Court should be reversed 
and that Court should be directed to enter judgment for 
defendant for its costs. 

Dated : San Francisco, California, March 10, 1952. 

Respectfully submitted, 

T. E. Meyer, 
Samuel L. Holmes, 
Brobeck, Phleger & Harrison, 
Attorneys for Appellant 
Fibreboard Products Inc. 



No. 13,141 



IN THE 



United States 
Court of Appeals 

For the Ninth Circuit 



FiBREBOARD PRODUCTS INC., 

a Corporation, et ai., 

Appellant, 

vs. 

W. H. TOWNSEND, 

Appellee. 



Petition of Appellant Fibreboard Products Inc. 
for Rehearing 



T. R. Meyer, 

Moses Lasky, 

Samuel L. Holmes, 

Brobeck, Phleger & Harrison, 

111 Sutter Street, 

San Francisco 4, California, 

Attorneys for Appellant 
Fibreboard Products Inc. 



PARKER PRINTING COMPANY. 180 FIRST STREET. SAN FRANCISCO 



TABLE OF CASES 

Page 
De La Rama SS Co. v. Peirson, 174 F.2d 84 4 

Monarco v. Lo Greco, 35 Cal. 2d 621, 220 P.2d 737 3 

Paul v. Layne-Bowler Corp., 9 Cal. 2d 561, 71 P.2d 817 3 



No. 13,141 

IN THE 

United States 
Court of Appeals 

For the Ninth Circuit 



FlBREBOARD PRODUCTS INC., 

a Corporation, et al., 



vs. 



W. H. Townsend, 



Appellant, 



Appellee. 



Petition of Appellant Fibreboard Products Inc. 
for Rehearing 



Appellant Fibreboard Products Inc. respectfully peti- 
tions for a rehearing of this Court's decision of February 
2, 1953. 

The opinion of Judge Harrison holds that the contract is 
not of a kind falling within the Statute of Frauds. But that 
is not the decision of the Court on this vital point, because 
the opinion of Judge Pope, concurred in by Judge Healy, 
holds that the contract is one falling within the Statute. 

The majority opinion then holds that despite the fact that 
the contract does come within the Statute of Frauds, appel- 
lant is estopped to rely on the Statute. The basis of the 



2 
alleged estoppel is important, in perceiving what we re- 
spectfully submit is the clear error in the decision. The 
basis of the estoppel, according to this court's decision, is 
that appellee changed his position in reliance upon an oral 
promise of appellant. 

The Court's opinion is clear and specific as to both ele- 
ments in this supposed estoppel — (1) what the oral promise 
was, and (2) what the change of position was. 

The change of position, as clearly stated in the opinion, 
is that appellee gave up a job in Alabama and removed 
himself and his family to California. 

In order for this to be in reliance on a promise, it would 
have had to occur after the promise was made, not before. 
But what was the alleged promise? The promise is said to 
be the oral contract of employment, which would have been 
wholly valid and enforceable as a contract but for the Stat- 
ute of Frauds. 

Thus, the majority opinion states : 

"The facts here found disclose that Townsend was in- 
duced by Fibreboard seriously to change his position 
in reliance on the promises which made up the con- 
tract, and now to deny enforcement of the contract 
would result in unconscionable injury to the appellant." 
(Opinion, p. 6) 

The legal rationale is that the Statute of Frauds, the one 
obstacle to enforcement of the contract, is removed by the 
element of reliance. 

But the facts do not support the application of this doc- 
trine here. The Court's opinion makes clear that there was 
no such contract until after appellee had come to California. 
Thus, the opinion of Judge Harrison succinctly states — and 
Judges Pope and Healy concur — that 



3 

«• • * t ] ie con t rac t f employment was not made suffi- 
ciently specific to be enforceable until the conversation 
of November 15, 1948 • * *" (Op., 3) 

This conversation occurred after appellee had come to Cali- 
fornia. At the time appellee presented himself to appellant 
in California on November 15, 1948, appellee admittedly had 
no contract. 

On the face of the opinion, then, this is not a case coming 
within the rationale of the estoppel principle upon which 
the majority opinion rests itself. The acts said to constitute 
reliance on a contract could not have been such, for there 
was no contract. No California decision has ever held that 
reliance on a promise can create an estoppel to set up the 
Statute of Frauds when the promise falls short of being a 
legal contract, not merely because of the Statute of Frauds, 
but because of other vital deficiencies as well. 

On the contrary, the very case which the Court relies 
upon in its decision for the rule of estoppel, Monarco v. Lo 
Greco, 35 Cal. 2d 621, 220 P.2d 737, shows it to be the law of 
California that, to work an estoppel against the application 
of the Statute of Frauds, the changes of position must have 
occurred in reliance upon a prior promise forming part of 
a contract which was complete, at or before the time the 
changes in position occurred, in every respect but failure to 
be in writing. Earlier cases also demonstrate this to be the 
law. 

Thus, the part performance by a lessee which precludes 
assertion of the plea of the Statute of Frauds must occur 
while the lease is in effect and not simply in anticipatio7i of 
a promised extension. Paul v. Layne-Bowler Corp., 9 Cal. 
2d 561, 71 P.2d 817. 



4 

Perhaps it may be countered that this Court relied on 
another supposed change of position, namely, in the words 
of Judge Harrison, that appellee "* * * worked for nine 
months at an inferior job * * * pursuant to an express 
understanding that he would do so as a part of his arrange- 
ment for a permanent job." (Op., 4) 

We do not believe that the Court included this item as an 
element of the estoppel, because otherwise the Court would 
have been finding a fact in contradiction to an express find- 
ing of the Trial Court, whose judgment it affirms, and this 
would have been in excess of its functions as an appellate 
court. 

What the Trial Court found was that "* * * pending the 
opening of the defendant's paper pulp mill, said defendant 
would endeavor to find other employment for plaintiff." 
(Tr., 32) As this Court has said (Be La Rama SS Co. v. 
Peirson, 174 F.2d 84 (per Pope, J), statements of this char- 
acter fall far short of a contract. (Cf. fn. 1, p. 86) No finding 
of the Trial Court states directly or by any inference that 
appellant ever promised that prior to the completion of the 
pulp mill it would employ appellee for any period or in any 
capacity, or that acceptance of temporary employment by 
appellee for appellant at another job was a prerequisite or 
condition of any later emplo3^ment at the pulp mill. 

The Trial Court made no findings on the issue of estoppel. 
It found that the several acts of appellee which this Court 
holds constitute estoppel to rely on the Statute of Frauds 
simply constituted consideration sufficient to take the case 
out of the rule that a contract of employment for a reason- 
able time is terminable at will. 



5 

The record in this case presents the very situation for 
which the Statute of Frauds was designed. The finding of 
the oral promise here depends solely upon the uncorrobo- 
rated testimony of appellee concerning the statements 
alleged to have been made in an office interview in Cali- 
fornia on November 15, 1948, after the change of position. 
Let it be assumed that this promise was made, as the Trial 
Court found; the Statute of Frauds always does assume 
that there is sufficient evidence to support a finding that a 
contract was made, but nevertheless refuses to let it be en- 
forced because of the possibility of fraud. Such is its very 
purpose and reason. 

To recapitulate, and to point to the precise error in mis- 
applying California law, we submit that the Court over- 
looked the distinction between two different doctrines, one 
having to do with what will constitute a contract, and the 
other having to do with what will constitute estoppel to 
rely on the Statute of Frauds where a contract otherwise 
exists. More specifically, there is a principle that certain 
detriments may serve as contractual consideration which, 
when added to the promise to render services, can take a 
case out of the rule that a contract for permanent employ- 
ment is terminable at will ; there is another principle that a 
serious change of position in reliance on a contract can 
produce an injury unconscionable enough to estop the plea 
of the Statute of Frauds. 

Where the first principle applies, the contract becomes 
mutually binding by reason of the acts which constitute the 
detriment. But under the second doctrine (from the Mon- 
arco case), the acts of detriment, i.e., the acts in reliance on 
a contract, must be performed after the contract goes into 
effect and while it is in effect. 



6 
We submit that in order to conform to California law a 
rehearing should be granted and that the judgment of the 
Trial Court should be reversed. 

Dated : February 27, 1953. 

Respectfully submitted, 

T. R. Meyer, 
Moses Lasky, 
Samuel L. Holmes, 
Brobeck, Phleger & Harrison, 
Attorneys for Appellant 
Fibreboard Products Inc. 



CERTIFICATE OF COUNSEL 

I hereby certify that in my judgment the foregoing peti- 
tion for rehearing is well founded and that it is not inter- 
posed for delay. 

Samuel L. Holmes. 



M^ s Ho- 13143 



^antteb States 

Court of Appeals; 

for tfje JJintf) Circuit* 



SOUTHERN CALIFORNIA EDISON COM- 
PANY, LIMITED, a Corporation, 

Appellant, 



vs. 
LESTER W. HURLEY, 



Appellee. 



transcript of Eecorb 



Appeal from the United States District Court for the 

Southern District of California, 

Central Division. 

FILED 



JAN - 9 1952 

iAUC P'. O'BRIEN 

irTstreetrban Francisco, Calif «-f-j 



Phillips & Wan Orden Co., 870 Brannan 



fc^ERK 



No. 13143 



Unite* States 

Court of Appeal* 

for tfje igmtf) Circuit. 



SOUTHERN CALIFORNIA EDISON COM- 
PANY, LIMITED, a Corporation, 

Appellant, 



vs. 
LESTER W. HURLEY, 



Appellee. 



Uransttrtpt of &ecorb 



Appeal from the United States District Court for the 

Southern District of California, 

Central Division. 



Phillips & Van Orden Co., 870 Brannan Street, San Francisco, Calif. 



INDEX 

[Clerk's Note: When deemed likely to be of an important nature, 
errors or doubtful matters appearing in the original certified record 
are printed literally in italic; and, likewise, cancelled matter appear- 
ing in the original certified record is printed and cancelled herein 
accordingly. When possible, an omission from the text is indicated by 
printing in italic the two words between which the omission seems 
to occur.] 

PAGE 
Appeal : 

Designation of Contents of Record on 
(U.S.D.C.) 58 

Notice of 51 

Statement of Points on Which Appellant 
Intends to Rely on (U.S.C.A.) 347 

Statement of Points on Which Defendant 
and Appellant Intends to Rely on 
(U.S.D.C.) 51 

Stipulation Re Designation of Contents 
of Record on 60 

Stipulation Re Preparation of Transcript 
of Record on 354 

Certificate of Clerk 345 

Defendant's Memorandum of Points and Au- 
thorities 3 

Designation of Contents of Record on Appeal 
(U.S.D.C.) 58 

Exhibits, Defendant's: 

A— Letter Dated February 17, 1941 185 

C— Notice Dated March 20, 1944 342 

T— Dividend Order 344 



ii Southern Calif. Edison Co. 

INDEX PAGE 

Exhibits, Plaintiff's: 

No. 1 — Certificate of Shares 68 

8 — Stock Record Dated March 14, 
1944 76 

9— Notice Dated March 20, 1944 73 

10 — Dividend Order Dated November 

19, 1928 85 

11 — Statement of Lester W. Hurley 

Dated February 19, 1931 93 

12 — Application for License to Marry.. 97 

13 — Dividend Order Dated November 
22, 1928 103 

15— Letter Dated October 15, 1945. ... 110 

16— Opinion 117 

17— Letter Dated February 7, 1929. . . 143 

18— Letter Dated February 15, 1929. . 145 

19 — Signatures of Lester W. Hurley. . 320 

20 — Resolution of Board of Directors 
of Southern California Edison Co., 
Adopted January 25, 1929 321 

22— Letter Dated March 29, 1944 326 

23 — Extracts from the Special Meeting 

of Board of Directors 328 

25— Letter Dated November 30, 1945. . 332 



vs. Lester W. Hurley iii 

INDEX PAGE 

Exhibits, Plaintiff 's— (Continued) : 

No. 26— Letter Dated December 7, 1945. . . 333 

27— Letter Dated December 20, 1945 . . 334 

28 — Letter Dated December 27, 1945. . 336 

29— Letter Dated January 8, 1946 337 

30— Letter Dated January 18, 1946 338 

31— Letter Dated February 8, 1946. . . 340 

Findings of Fact and Conclusions of Law After 
Trial Following Appeal 7 

Judgment 40 

Motion for New Trial 41 

Names and Addresses of Attorneys 1 

Notice of Appeal 51 

Order Amending Findings of Fact and Denying 
Defendant's Motion for a New Trial 50 

Reporter's Transcript of Proceedings 62 

Statement of Points on Which Appellant In- 
tends to Rely on Appeal (U.S.C.A.) 347 

Statement of Points on Which Defendant and 
Appellant Intends to Rely on Appeal 
(U.S.D.C.) 51 

Stipulation Re Designation of Contents of Rec- 
ord on Appeal 60 

Stipulation Re Preparation of Transcript of 
Record on Appeal 354 

Stipulation Re Re-Trial Filed March 16, 1951. . 6 



INDEX PAGE 

Witnesses, Defendants': 

Burton, George E. 

—direct 214, 236 

— cross 236 

Greenhouse, Frank L. 

—direct 282, 295 

— cross 299 

Jones, Robert N. 

—direct 201 

— cross 207 

Witness, Plaintiff's: 

Hurley, Lester W. 

—direct 63, 109 

— cross 147 

— redirect 199 



NAMES AND ADDRESSES OF ATTORNEYS 

For Appellant: 

FULCHER &. WYNN, 
411 West Fifth St., 
Los Angeles 13, Calif. 

For Appellee: 

HAROLD EASTON, 
633 Roosevelt Bldg., 
Los Angeles 14, Calif. ; 

THURMAN L. MeCORMICK, 

910 Rialto Bldg., 
Kansas City, Mo. 



In the District Court of the United States for the 
Southern District of California, Central Division 

Civil Action No. 5187 WM 

LESTER W. HURLEY, 

Plaintiff, 

vs. 

SOUTHERN CALIFORNIA EDISON COM- 
PANY, LIMITED, a Corporation, 

Defendant. 

DEFENDANT'S MEMORANDUM OF 
POINTS AND AUTHORITIES 

Pursuant to order for pre-trial hearing herein, 
defendant submits herewith its memorandum of the 
points of law and the authorities in support thereof 
upon which it intends to rely at trial: 

I. 

The judgment of the United States District Court 
in Kansas is not res judicata and does not affect 
the rights of defendant in the present action. 
Federal Rules of Civil Procedure, 
No. 19-B. 



4 Southern Calif. Edison Co. 

II. 

The payment by defendant of the dividends ac- 
cruing to one of the several joint owners of the 
stock discharged defendant's liability to all of said 
owners. 

California Civil Code, 
Sec. 1475. 

Cober vs. Connolly, 
20 Cal. 2nd, 741, at 744. 

Delano vs. Jacoby, 

96 Cal. 275, at 278. [21*] 

III. 

In any event, plaintiff is barred by the statute of 
limitations from recovering dividends paid on the 
stock described in Paragraph IV of the complaint 
more than two years prior to the filing of his ac- 
tion ; and as to the dividends on the stock described 
in Paragraph V, he is barred as to any dividends 
paid more than four years prior to the filing of his 
action. 

Perkins vs. Benguet, etc., 
55 Cal. App. 2nd, 720 at 770. 

IV. 

Plaintiff is not entitled to the recovery of interest 
on any sum prior to the date of his demand upon 
defendant for payment thereof. 

Perkins vs. Benguet, etc., 
55 Cal. App. 2nd, 720 at 765. 



* Page numbering appearing at foot of page of original Reporter's 
Transcript of Record. 



vs. Lester W. Hurley 5 

V. 

The failure of plaintiff, after demand to pursue 
his rights against George E. Burton and the Estate 
of Elizabeth J. Price, deceased, exonerates this 
defendant from liability. 

California Civil Code, 

Sec. 2831. 
California Civil Code, 

Sec. 2845. 

VI. 

Plaintiff never became the owner of, and thus 
entitled to dividends on, any of the stock described 
in his complaint, because there was no delivery 
thereof to him by the purported donor, Elizabeth 
J. Price. 

California Civil Code, 
Sec. 1147; 

Bishop's School vs. Wells, 
19 Cal. App. 2nd, 141. 

Respectfully submitted. 

PULCHER & WYNN, 
By /s/ HAROLD G. WYNN, 

Attorneys for Defendant. 

Affidavit of Service by Mail attached. 
[Endorsed] : Piled June 11, 1946. [22] 



6 Southern Calif. Edison Co. 

[Title of District Court and Cause.] 

STIPULATION RE RETRIAL 

Now on this 13th day of March, 1951, it is stipu- 
lated and agreed in the above-entitled cause by and 
between respective counsel for Plaintiff and De- 
fendant that: 

1. For the purpose of retrial of all issues in- 
volved in said cause all evidence heretofore intro- 
duced and received by the court, both parol and 
documentary, shall be considered as before the 
Court for all purposes for which the same was 
received by the court, as well as all stipulations 
heretofore filed in said cause. 

2. This stipulation is not intended to cover and 
does not cover the question of whether or not addi- 
tional evidence may be presented by either party 
on the retrial of the cause; but that question is 
expressly left open for determination by the Court 
upon said retrial. 

Signed and dated this 13th day of March, 1951. 

/s/ THURMAN L. McCORMICK, 
/s/ HAROLD EASTON, 

Attorneys for Plaintiff. 

FULCHER & WYNN, 
/s/ CAROL G. WYNN, 

Attorneys for Defendant. 
[Endorsed] : Filed March 16, 1951. 



vs. Lester W. Hurley 7 

[Title of District Court and Cause.] 

FINDINGS OF FACT AND CONCLUSIONS 
OF LAW AFTER TRIAL FOLLOWING 
APPEAL 

A new trial of the above-entitled cause having 
heretofore been ordered following reversal upon 
appeal [see 183 F. 2d 125], and said cause having 
come on regularly for trial in the above-named 
court on March 21, 1951, and plaintiff having then 
appeared by Messrs. Thurman L. McCormick and 
Harold Easton, his attorneys, and defendant hav- 
ing then appeared by Messrs. Charles E. R. Ful- 
cher and Carol G. Wynn, its attorneys, and the 
cause having proceeded to a retrial of the issues; 
and evidence having been received and the parties 
having stipulated that: "For the purpose of retrial 
of all issues involved in said cause all evidence 
heretofore [34] introduced and received by the 
court, both parol and documentary, shall be con- 
sidered as before the Court for all purposes for 
which the same was received by the court, as well 
as all stipulations heretofore filed in said cause"; 
and the cause having been argued and submitted 
for decision, the court now makes findings of fact 
and conclusions of law as follows: 

Findings of Fact 

I. 

At the time of the commencement of this action 
and at all times herein mentioned plaintiff was a 
citizen and resident of the State of Missouri. 



8 Southern Calif. Edison Co. 

At the time of the commencement of this action 
and at all times herein mentioned defendant was a 
corporation organized and existing under and by 
virtue of the laws of the State of California, with 
its principal office and place of business located in 
Los Angeles, California. 

The amount in controversy between plaintiff and 
defendant in this action, exclusive of interest and 
costs, exceeds $3,000.00. 

Jurisdiction of this court is invoked by reason of 
the amount in controversy and the diversity of 
citizenship existing between plaintiff and defendant, 

II. 

Some years prior to November 19, 1928, William 
Price and Elizabeth J. Price were married. At the 
time of this marriage Elizabeth J. Price had two 
adult children born of a previous marriage: A son 
named George E. Burton and a daughter, who was 
plaintiff's mother. Prior to November 19, 1928, 
plaintiff's mother had died, leaving plaintiff as the 
sole surviving issue of her body. [35] 

For many years prior to November 19, 1928, 
plaintiff had resided, and at all times hereinafter 
mentioned continued to reside, in the State of Mis- 
souri; and William Price had resided, and at all 
times hereinafter mentioned until his death con- 
tinued to reside, in the State of California with 
plaintiff's grandmother, Elizabeth J. Price. 

For some time prior to November 19, 1928, Wil- 
liam Price had been the owner of a substantial 
number of the authorized issued and outstanding 



vs. Lester W. Hurley 9 

shares of the Series "B" six per cent preferred 
and the common capital stock of Southern Califor- 
nia Edison Company, Limited, a corporation, the 
defendant herein. 

III. 

On November 20, 1928, at Los Angeles, Califor- 
nia, William Price with the intent to make a gift 
inter vivos caused the defendant to issue in the 
names of Elizabeth J. Price, George E. Burton and 
Lester Hurley, the plaintiff, as joint tenants with 
full rights of survivorship, certificates numbered 
AO-59630, AO-69633 and A-8752 to A-8756, inclu- 
sive, evidencing ownership of 575 shares of the 
common capital stock of the defendant corporation, 
of the par value of $25.00 per share; and William 
Price then and there caused the certificates so 
issued to be delivered to plaintiff's grandmother, 
Elizabeth J. Price. 

That at said time and place said William Price 
informed defendant in the presence of said Eliza- 
beth J. Price that he expected to arrange for all 
dividends on said stock to be paid to and retained 
and used by said Elizabeth J. Price during her 
lifetime. 

IV. 

On November 20, 1928, at Los Angeles, Califor- 
nia, William Price with the intent to make a gift 
inter vivos [36] likewise caused the defendant to 
issue in the names of Elizabeth J. Price, George 
E. Burton and Lester Hurley, the plaintiff, as joint 
tenants with full rights of survivorship, certificates 
numbered AO-86998, AO-87011 and A-10216 evi- 



10 Southern Calif, Edison Co. 

dencing ownership of 191 shares of Series "B" six 
per cent preferred stock of the defendant corpora- 
tion, together with certificates numbered AO-59759 
and AO-59770 evidencing ownership of 88 shares 
of the common capital stock of the defendant cor- 
poration; and William Price then and there like- 
wise caused the certificates so issued to be delivered 
to Elizabeth J. Price. 

That at said time and place said William Price 
informed defendant in the presence of said Eliza- 
beth J. Price that he expected to arrange for all 
dividends on said stock to be paid to and retained 
and used by said Elizabeth J. Price during her 
lifetime. 

V. 

Some time prior to November 19, 1928, Elizabeth 
J. Price had requested plaintiff to sign two divi- 
dend orders in blank on the usual form provided 
by defendant for such purpose, and plaintiff did 
gratuitously sign and deliver said dividend order 
blanks to Elizabeth J. Price in the State of Mis- 
souri, but plaintiff then had no knowledge or under- 
standing of the purpose for which Elizabeth J. 
Price requested his signature or of the use which 
Elizabeth J. Price intended to make of the docu- 
ments which the plaintiff then signed. 

VI. 

On December 11, 1928, Elizabeth J. Price de- 
livered to defendant at Los Angeles, California, one 
of the dividend order forms mentioned above in 
Paragraph V, bearing the signatures of Elizabeth 



vs. Lester W. Hurley 11 

J. Price, George E. Burton and plaintiff, directing 
that all dividends on the 575 shares of [37] common 
stock described above in Paragraph III be remitted 
to Elizabeth J. Price. 

Said dividend order was numbered 12742, and 
was and is in the words and figures following: 

Form-Inv. 21-A Rev. 12742 

Kindly Sign and Return at Once. 

Southern California Edison Company 
Dividend Order 

Date Nov. 19th, 1928. 

Southern California Edison Company, 
Los Angeles, California. 

Gentlemen : 

Until this order is revoked in writing, please 
remit to Mrs. Elizabeth J. Price at the address 
given below, by check drawn to his order, the divi- 
dend now due, or which may become due on all 
shares of stock of your company, now or hereafter 
standing in the name of Mrs. Elizabeth J. Price 
and George E. Burton and Lester Hurley on the 
books of your company. 



1 2 Southern Calif. Edison Co. 

Stock how held — 

Original Preferred . . Preferred Series A . . . 
Common (575 shares) Preferred Series B... 

Signature: Mrs. Elizabeth J. Price. 
Address : 



Signature : George E. Burton. 
Address : 1046 Ann Ave., 

Kansas City, Kansas. 

Signature : Lester Hurley. 
Address : 



Witness : 

Signature: Helen Burton. 

Address: 1046 Ann Ave., K. C, Kans. 

Address for sending dividends : 1301 West 52nd 
St., Los Angeles. 

Note : Dividend Order must be signed by record 
owner of stock exactly as the name or names ap- 
pear [38] on the certificate. If signed by agent, 
evidence of authority must accompany Dividend 
Order. 

Dec. 11, 1928. 
VII. 

On December 11, 1928, Elizabeth J. Price de- 
livered to defendant at Los Angeles, California, the 
second of the dividend order forms mentioned above 
in Paragraph V, bearing the signatures of Eliza- 
beth J. Price, George E. Burton and plaintiff, di- 
recting that all dividends on the 191 shares of 
Series "B" six per cent preferred and the 88 shares 



vs. Lester W. Hurley 13 

of common stock described in Paragraph IV be 
remitted to Elizabeth J. Price. 

Said dividend order was numbered 12743, and 
was and is in the words and figures following: 

Form-Inv. 21-A Rev. 12743 

Kindly Sign and Return at Once. 

Southern California Edison Company- 
Dividend Order 

Date Nov. 22nd, 1928. 

Southern California Edison Company, 
Los Angeles, California. 

Gentlemen : 

Until this order is revoked in writing, please 
remit to Mrs. Elizabeth J. Price at the address 
given below, by check drawn to his order, the 
dividend now due, or which may become due on all 
shares of stock of your company, now or hereafter 
standing in the name of Mrs. Elizabeth J. Price 
and George E. Burton and Lester Hurley on the 
books of your company. 

Stock how held — 

Original Preferred . . Preferred Series A . . . . 
Common (88 shares) Preferred Series B. . . . 

(191 shares) 

Signature : Mrs. Elizabeth J. Price. 
Address: 1301 West 52nd St., 
Los Angeles. 



14 Southern Calif. Edison Co. 

Signature: George E. Burton. 
Address: 1046 Ann Ave., 

Kansas City, Kansas. [39] 

Signature : Lester Hurley. 
Address : 5716 Scarritt, K. C, Mo. 

Witness : 

Signature: K. N. Jones. 
Address: 3829 Garfield Ave., K. C, Mo. 

Address for sending dividends : 1301 West 52nd 
Street, Los Angeles. 

Note : Dividend Order must be signed by record 
owner of stock exactly as the name or names appear 
on the certificate. If signed by agent, evidence of 
authority must accompany Dividend Order. 

Dec. 11, 1928. 
VIII. 

William Price died at Los Angeles, California, 
on January 5, 1929, and Elizabeth J. Price accom- 
panied his remains to the State of Missouri for 
burial. 

IX. 

On or about January 19, 1929, at Kansas City, 
in the State of Kansas, Elizabeth J. Price caused 
the Brotherhood State Bank of that city to forward 
to defendant at Los Angeles, California, the cer- 
tificates for 575 shares of common stock listed above 
in Paragraph III, together with forms of assign- 
ment attached bearing the signatures of Elizabeth 
J. Price, George E. Burton and plaintiff, and pur- 



vs. Lester W. Hurley 15 

porting to assign the 575 shares of common stock 
to "Mrs. Elizabeth J. Price, or George E. Burton." 
The certificates with the forms of assignment at- 
tached were received by defendant on January 22, 
1929, and the assignments were thereupon returned 
to the Brotherhood State Bank with the request by 
defendant that the signatures of the purported 
transferors be guaranteed. 

On February 1, 1929, defendant again received 
the [40] forms of assignment with the signatures 
of Elizabeth J. Price and George E. Burton thereon 
guaranteed by Brotherhood State Bank. On Feb- 
ruary 7, 1929, defendant again returned the forms 
of assignment with a letter suggesting that the 
transferee designation be changed to joint tenancy 
form and again requesting that the purported sig- 
nature of plaintiff be guaranteed. In response to 
this letter the Brotherhood State Bank altered the 
forms of assignment by changing the transferee 
designation from "Mrs. Elizabeth J. Price, or 
George E. Burton" to "Elizabeth J. Price and 
George E. Burton, as joint tenants, with full rights 
of survivorship"; and the bank thereupon added to 
each form of assignment a guarantee of the gen- 
uineness of the signature of plaintiff. 

This alteration of the transferee designation was 
made by the Brotherhood State Bank without any 
authority from plaintiff and without the knowledge 
or consent of plaintiff. 

Thereafter and on or about February 19, 1929, 
defendant received the forms of assignment from 
the Brotherhood State Bank with the transferee 



16 Southern Calif. Edison Co. 

designation altered and with the signatures of the 
transferors guaranteed as aforesaid, and defendant 
thereupon transferred the 575 shares of common 
stock to Elizabeth J. Price and George E. Burton 
as joint tenants. 

Thereupon and at all times thereafter from on 
or about February 19, 1929, until following entry 
of the judgment of the United States District Court 
for the District of Kansas on July 26, 1945, herein- 
after mentioned, none of the 575 shares of common 
stock appeared upon the records of defendant in 
the name of plaintiff. 

X. 

Thereafter and on or about March 18, 1929, Eliza- 
beth J. Price and George E. Burton delivered [41] 
to defendant a dividend order, numbered 13157, on 
defendant's usual form, signed by Elizabeth J. Price 
and George E. Burton and directing that all divi- 
dends on common stock standing in the name of 
Elizabeth J. Price and George E. Burton as joint 
tenants be paid to Elizabeth J. Price until such 
order be revoked. 

XL 

Thereafter from time to time defendant declared 
and set aside as payable to its shareholders certain 
dividend and stock rights. 

The dividends so declared and set aside to the 
holder or holders of the 575 shares of common stock 
described above in Paragraph III during the period 
from February 15, 1929, until December 27, 1943, 



vs. Lester W. Hurley 17 

were declared and set aside on the dates and in the 
amounts hereinafter set forth : 

Amount of 
Item Year Dividend 

1 1929 (last three quarters) $ 862.50 

2 1930 1,150.00 

3 1931 1,150.00 

4 1932 1,150.00 

5 1933 1,150.00 

6 1934 1,006.25 

7 1935 862.50 

8 1936 862.50 

9 1937 934.37 

10 1938 1,006.25 

11 1939 1,006.25 

12 1940 1,092.50 

13 1941 1,006.25 

14 1942 1,006.25 

15 1943 (to Dec. 27) 862.50 

16 — The aggregate value of all dividends 

so declared and set aside was and is $15,108.12 

The stock rights so declared and set aside to the 
holder or holders of the 575 shares of common stock 
described above in Paragraph III during the period 
from February 15, 1929, until December 27, 1943, 
were as follows : 

17 — In 1929, a total of 575 common stock 
rights then having a value of $3,075 



18 Southern Calif. Edison Co. 

per right, or a total value of $ 1,768.13 

were so declared and set aside 
18 — In 1930, a total of 575 common stock 
rights then having a value of $3.70 

per right, or a total value of $ 2,127.50 

were so declared and set aside 
19 — In 1931, a total of 575 common stock 
rights then having a value of $2.53 

per right, or a total value of $ 1,454.75 

were so declared and set aside 



20 — The aggregate value of all stock 
rights so declared and set aside was 
and is $ 5,350.38 

21 — The aggregate value of all dividends 
and all stock rights so declared and 
set aside was and is $20,458.50 

XII. 

The dividends and stock rights listed above in 
Paragraph XI in the total sum of $20,458.50 were 
paid and delivered by defendant to Elizabeth J. 
Price under dividend order No. 13157 during the 
period from February 19, 1929, until the death of 
Elizabeth J. Price on December 27, 1943. [43] 

That at the time of the payment by defendant to 
Elizabeth J. Price of each of the dividends and 
stock rights aforesaid, defendant had reason to 
know that Elizabeth J. Price alone would benefit 
from such payment and performance, and that 
Elizabeth J. Price w T ould not account to or pay or 



vs. Lester W. Hurley 19 

otherwise distribute to either George E. Burton or 
plaintiff any part of such payment and perform- 
ance. 

XIII. 

At the time of the issuance of the certificates for 
575 shares of common stock described above in 
Paragraph III, on November 20, 1928, plaintiff was 
a minor of the age of twenty years, and had no 
actual notice or knowledge of the issuance of any 
of the certificates. The certificates were never in 
the possession or under the control of plaintiff, and 
plaintiff did not know of his ownership of any 
interest in any stock of the Southern California 
Edison Company, Limited, and did not know of the 
nature or purpose or effect or of the use made of 
the dividend order blanks signed by plaintiff at the 
request of Elizabeth J. Price, as stated above in 
Paragraph V, and did not know of the existence 
of any assignment of his interest in the 575 shares 
of common stock to Elizabeth J. Price and George 
E. Burton, and did not know of the declaration or 
payment of any dividends or of the issuance of any 
stock rights on the 575 shares of common stock, and 
had no knowledge of any of the facts set forth 
above in Paragraphs III, VI, IX, X, XI and XII, 
until March 18, 1944, except as in these findings 
expressly found. 

For many years prior to 1928, plaintiff had great 
trust and confidence in Elizabeth J. Price and 
George E. Burton, and such feeling of trust and 
confidence on the part of plaintiff continued until 
the death of his grandmother on December 27, 1943. 



20 Southern Calif. Edison Co. 

Throughout this period both Elizabeth J. Price 
and [44] George E. Burton were well aware of and 
freely accepted the great trust and confidence re- 
posed in each of them by plaintiff, and a fiduciary 
relationship in fact existed in all the dealings 
throughout this period between Elizabeth J. Price 
and plaintiff and George E. Burton and plaintiff. 
From time to time throughout the years from 
1928, until the death of Elizabeth J. Price on De- 
cember 27, 1943, Elizabeth J. Price and George 
E. Burton concealed from plaintiff all the facts set 
forth above in Paragraphs III and IV, and con- 
cealed from plaintiff all the facts with respect to 
his ownership of any interest in any stock of the 
defendant corporation, and during this period Eliza- 
beth J. Price from time to time represented to 
plaintiff that he might receive from her estate upon 
her death certain stock ; that whatever he might so 
receive would depend upon the will and favor of 
his grandmother; that she resented any inquiry or 
prying by plaintiff into her financial affairs or busi- 
ness arrangements. 

Plaintiff believed these representations and in 
reliance upon them signed the blank dividend orders 
at the request of Elizabeth J. Price, as set forth 
above in Paragraph V, and signed the forms of 
assignment mentioned above in Paragraph IX, 
without inquiry as to the reason for his signature 
and without any knowledge or understanding as to 
the purpose or effect of his signature. 

As a further result of plaintiff's reliance upon 



vs. Lester W. Hurley 21 

these representations, and of the concealment by 
Elizabeth J. Price and George E. Burton of plain- 
tiff's interest in any stock of the defendant corpo- 
ration, plaintiff made no inquiry concerning the 
stock of defendant or any other financial affairs or 
arrangements of either William Price or Elizabeth 
J. Price until after the death of his grandmother on 
December 27, 1943. [45] 

XIV. 

On March 20, 1944, promptly following his first 
discovery and knowledge on March 18, 1944, of any 
of the facts set forth above in Paragraphs III, VI, 
IX, X, XI or XII, plaintiff disaffirmed all the 
aforementioned transfers and dividend orders there- 
tofore signed by him. 

Thereafter and on June 2, 1944, George E. Bur- 
ton commenced an action in the United States D